Pubdate: Wed, 24 Apr 2013
Source: New York Times (NY)
Copyright: 2013 The New York Times Company
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

COURT RULES FOR IMMIGRANT ON DEPORTATION IN DRUG CASE

WASHINGTON - "The social sharing of a small amount of marijuana" by
immigrants lawfully in the United States does not require their
automatic deportation, the Supreme Court ruled on Tuesday.

"Sharing a small amount of marijuana for no remuneration, let alone
possession with intent to do so, does not fit easily into the everyday
understanding of trafficking, which ordinarily means some sort of
commercial dealing," Justice Sonia Sotomayor wrote for a seven-justice
majority, partly quoting from an earlier case.

The case arose from a traffic stop in Georgia in 2007 during which
Adrian Moncrieffe, a Jamaican citizen, was found with 1.3 grams of
marijuana - "the equivalent," Justice Sotomayor wrote, "of about two
or three marijuana cigarettes."

Mr. Moncrieffe pleaded guilty to possession with intent to distribute,
a felony under Georgia law, and was sentenced to five years of
probation. Saying the conviction established that Mr. Moncrieffe had
committed an "aggravated felony," federal authorities sought to deport
him.

Tuesday's decision was the third in a series of Supreme Court cases
considering whether a given state drug crime amounted to an aggravated
felony under the immigration laws. If it does, the government has no
choice but to deport the defendant. If it does not, the attorney
general has the discretion to show leniency.

The question in all of the cases was how to understand state drug
convictions in light of a part of the immigration laws that defines
aggravated felonies to include drug offenses that would be punishable
by more than a year in prison under the federal Controlled Substances
Act.

The act generally calls for a maximum term of five years for
possessing controlled substances with an intent to distribute them.
But it contains an exception for the distribution of "a small amount
of marijuana for no remuneration," which judges may treat as a
misdemeanor subject to no more than a year in prison.

Justice Sotomayor wrote that it was not clear whether the formal
elements of Mr. Moncrieffe's state conviction fit within the federal
exception. The ambiguity, she said, counted in his favor, sparing him
from automatic deportation.

The federal government said the actual facts of the case mattered and
should be determined during immigration proceedings. Justice Sotomayor
rejected that approach, saying that "our nation's overburdened
immigration courts" would have difficulty making such determinations
based on stale or missing evidence presented by immigrants who may be
in detention and have no right to a lawyer.

In dissent, Justice Clarence Thomas said the majority's approach "has
the effect of treating a substantial number of state felonies as
federal misdemeanors, even when they would result in federal felony
convictions." The only theme that unites the court's decisions in this
area, Justice Thomas added, "appears to be that the government
consistently loses."

In a second dissent in the case, Moncrieffe v. Holder, No. 11-702,
Justice Samuel A. Alito Jr. said the majority's approach was
"analytically confused." It will, he said, allow people working for
"some of the world's most dangerous drug cartels" to escape automatic
deportation. "The court's decision," Justice Alito added, "also means
that the consequences of a conviction for illegal possession with
intent to distribute will vary radically depending on the state in
which the case is prosecuted."

Justice Alito said that Mr. Moncrieffe had had the opportunity to show
immigration authorities that he would have been eligible for lenient
treatment under the federal drug law. But the "petitioner, for
whatever reason, availed himself only of the opportunity to show that
his conviction had involved a small amount of marijuana and did not
present evidence - or even contend - that his offense had not involved
remuneration."
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