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A Couple of Joints (Probably) Won't Get You Deported

By Robyn Hagan Cain on April 23, 2013 | Last updated on March 21, 2019

Adrian Moncrieffe, a Jamaican citizen, came to the U.S. legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. That’s about two or three joints. Moncrieffe pleaded guilty in Georgia to possession of marijuana with intent to distribute.

Under a state statute providing more lenient treatment to first-time offenders, the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether.

The federal government, however, was not so generous, and tried to have Moncrieffe deported.

The Immigration and Nationality Act (INA) provides that a noncitizen who has been convicted of an "aggravated felony" may be deported. Illicit drug trafficking offenses count as aggravated felonies. A non-citizen found guilty of an aggravated felony is ineligible for discretionary relief from removal.

"Illicit trafficking in a controlled substance" is not defined, but the INA states that it includes a drug trafficking crime as defined in 18 U.S.C. §924(c), meaning "any felony punishable under the Controlled Substances Act."

A "felony" is an offense for which the "maximum term of imprisonment authorized" is "more than one year."

A noncitizen's conviction of an offense that the CSA makes punishable by more than one year's imprisonment counts as an "aggravated felony" for immigration purposes. A conviction under either state or federal law may qualify, but -- under Lopez v. Gonzales -- a "state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law."

Here, the government tried to deport Moncrieffe because possession of marijuana with intent to distribute is an offense under the Controlled Substances Act, punishable by up to five years' imprisonment, and thus an aggravated felony.

An Immigration Judge agreed and ordered Moncrieffe removed.

But was that the right call? The decision was appealed all the way to the Supreme Court, which agreed to decide whether the aggravated felony category includes a state criminal statute that extends to the social sharing of a small amount of marijuana.

This week, the Court held in a 7-2 decision that it does not.

Writing for the majority, Justice Sonia Sotomayor concluded, "Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not 'necessarily' involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony."

Despite his victory, Reuters reports that Moncrieffe could still be deported. Today's win merely means that he can contest the decision in immigration proceedings and he is eligible for discretionary relief.

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