March 2014

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Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us u Immigration & Crimes w Immigration & Health care w Behind the Case w going global sponsor: about us: 3 Practice Pointers 9 by Mary E. Kramer I 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 BACKTRACK High Court Takes on Gay Marriage next uw AIC Report: Immigrants and Crime

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