Immigration Impact of Criminal Convictions – Strategy for New Jersey Criminal Lawyers in Assessing Plea Bargains

An individual who is living legally in the U.S. can be deported if he or she is convicted of a crime while here. Federal law specifies, however, that deportation has to be automatic if the individual is convicted of what the law calls an “aggravated felony” – a phrase that has turned out to be a challenge to define in a string of Supreme Court cases.

In Moncrieffe v. Holder, No. 11-702, the United States Supreme Court sorted out what kind of a conviction under state law for possessing marijuana amounts to a felony that would lead to automatic deportation, with no chance to challenge the exclusion. The Court reviewed a case in which a man who is a native of Jamaica, but had lived in the U.S. since he was three years old, who was convicted in Georgia of having a small amount of marijuana in his car; the conviction was for possession with the aim of distributing it.
Only if the crime for which the individual was punished under state law closely matches what federal drug law treats as a serious offense, the Court said, can a conviction under the state law lead to automatic deportation.

The Moncrieffe decision instructs local New Jersey criminal lawyers that any plea deal in a criminal case requires consideration of the possible immigration consequences. The details of the case are as follows:
The case involves a Jamaican national, Adrian Moncrieffe, who had lived in the U.S. since his arrival in 1984, when he was three years old. He is the father of two children. In 2008, he was stopped by police in Georgia for a traffic violation, and the officers discovered some 1.3 grams of marijuana in his car; that is enough for two or three “joints,” by the Court’s estimate. He pleaded guilty to the Georgia crime of possessing marijuana with intent to distribute it.

While the charge against him was an intent to distribute it, the Court treated the incident as involving only “the social sharing” of a small amount of the drug, not as a transaction in exchange for money.
Federal officials treated that guilty plea as an admission of an “aggravated felony,” because a federal drug law treats that kind of crime as a felony leading to a maximum of five years in prison. Under immigration law, an “aggravated felony” must lead to deportation. Even the U.S. attorney general, who sometimes has the authority to revoke a deportation order, cannot do so for a person convicted of such a felony.

After Moncrieffe lost his challenge in an administrative case, he was sent home to Jamaica. As a result of Tuesday’s ruling, he has the option of asking authorities in the U.S. to let him return because he is now eligible for that kind of relief. Because his case has proceeded on the premise that he had only a small amount of marijuana with him when arrested, and did not get any money for it from anyone else, he may have an enhanced chance of convincing officials to allow him to return.
The Fifth Circuit Court upheld the deportation order. While it noted that the federal appeals courts are split on the issue, that Circuit Court concluded that, since the amount of marijuana involved was not something that prosecutors had to prove in order to get a distribution conviction, it amounted to a felony under federal law.

The Supreme Court took on his case to clear up the dispute among lower courts. Justice Sonia Sotomayor, writing for the majority, said that the Court was applying what is called the “categorical approach” in deciding whether a state drug law and a federal law cover the same kind of criminal conduct, in order to determine whether a conviction under the state law means the same thing under federal law.
A complicating factor for the Court in deciding the case is that, while federal law generally treats marijuana possession as a felony, there is a specific provision that says that it is a misdemeanor, not a felony, if the conviction involved a small amount of the drug and no money changed hands. The federal government had argued that that was only a sentencing factor, not to be taken into account in comparing state and federal laws to see if a state conviction constituted a felony for deportation purposes. (That is a sentencing factor when an individual is convicted of a distribution offense.)
Moncrieffe’s lawyers contended, however, that he was eligible for that exception to the general notion of a distribution crime as a felony, because he was not arrested with more than a small amount of marijuana for which he received no money. The Court agreed with that argument. The Court, however, left open the definition of what “a small amount” of drugs would be, so that will have to be sorted out in future cases by lower courts.

The Court also rejected a back-up argument made by the government in this case: that Moncrieffe and others in his situation could try to persuade immigration officials, in a deportation proceeding, that the crime did not qualify as a felony. The Court concluded that this would necessarily involve a series of “mini-trials,” bogging down the immigration machinery.

Those who deal in a sizable amount of marijuana, the majority opinion noted, can be prosecuted under more serious trafficking offense laws.

The majority also noted that avoiding automatic deportation because a state conviction, such as a conviction under New Jersey state law, does not amount to an “aggravated felony” does not mean that deportation would be avoided altogether. All that it means, the opinion said, is that mandatory deportation is not available.

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