Immigration & Crimes
Immigration & Health care
Behind the Case
by Mary E. Kramer
n the past year, the U.S. Supreme Court has issued
two important decisions involving the classiﬁcation
of crimes based on a categorical approach. Already,
immigration law aorneys are experiencing success
from the use of these cases in their motions to dismiss
the charge(s) of removability. ese cases also arguably
abrogate Board of Immigration Appeals (BIA) precedent,
and are important for contesting not only removability,
but arguing the burden of proof and eligibility for relief.
Georgia Statute vs. Federal CSA
In Moncrieﬀe v. Holder, 133 S. Ct. 1678 (2012), the
Court confronted the issue of whether a Georgia
controlled-substance conviction could qualify as an
aggravated felony drug-traﬃcking crime where the
state statute was not a categorical match to the federal
Controlled Substances Act (CSA). See INA §101(a)(43)
(B). As background, the CSA contains a provision for
distribution of a small amount of marijuana without
remuneration. 21 USC §841(b)(1)(D).
According to the Court, the conviction did not
necessarily involve facts that correspond to an oﬀense
punishable as a felony under the CSA. Assuming the
least culpable conduct described by statute, the Court
would proceed as if this was a misdemeanor oﬀense,
not a federal felony. Moncrieﬀe did not have an
aggravated felony drug-traﬃcking conviction.
Cases to read with Moncrieﬀe that require the state
statute to present a categorical match to a federal
felony based on the CSA include Lopez v. Gonzales,
549 U.S. 47, 53–54 (2006) and Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010).
Notably, before Moncrieﬀe, the BIA had acknowledged
the problem that some state statutes lack a
distribution-without-remuneration provision and,
thus, did not present a categorical match to the CSA.
Indeed, as early as 2008, the BIA ruled that the amount
of marijuana and the issue of remuneration are
"non-elemental facts" that are adjudicated through a
"circumstance-speciﬁc" approach. See Maer of Aruna,
24 I&N Dec. 452 (BIA 2008).
e circumstance-speciﬁc approach is applied where
the INA includes a non-elemental fact—a fact that will
never be included in the federal statute—within its
deﬁnition or classiﬁcation of aggravated felony, such
as ﬁnancial loss to a victim. See Nijhawan v. Holder,
557 U.S. 29 (2009). e Supreme Court speciﬁcally
rejected this "hypothetical felony" approach, and
clariﬁed that it is a categorical approach that applies in
the context of the aggravated felony drug-traﬃcking
crime deﬁnition. Moncrieﬀe, 133 S. Ct. 1678, at 1688.
On a practical level, practitioners whose clients
appear to have a "traﬃcking" crime should review
the relevant state code to determine whether there
is a provision for distribution of marijuana without
remuneration. If there is, then is the language close
enough to the federal law? But if there is no such
provision at all—as in the case with the Georgia
Code—then it cannot be said that the client has been
convicted of a federal felony drug-traﬃcking crime.
SCOTUS Analyzes Crimes Through 'Categorical' Lens