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Supreme Court to rule on 'aggravated felony' for immigration purposes

The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in Moncrieffe v. Holder [docket; cert. petition, PDF] to determine whether a conviction under a provision of state law that encompasses, but is not limited to, the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal law felony. The Immigration and Nationality Act provides that an alien "who is convicted of an aggravated felony at any time after admission is deportable." [8 USC § 1227(a)(2)(A)(iii)]. A state law offense may constitute an "aggravated felony" if it is the equivalent of a "felony punishable under the Controlled Substances Act." Under the Controlled Substances Act, a person commits a felony if he possesses with intent to distribute "less than 50 kilograms of marihuana," except that a person whose offense involves "distributing a small amount of marihuana for no remuneration" commits only a misdemeanor. Adrian Moncrieffe, a native of Jamiaca, pleaded guilty to possessing marijuana with intent to distribute, and the Department of Homeland Security sought to have him removed. The US Court of Appeals for the Fifth Circuit upheld [opinion] the felony classification and allowed his removal.

The court also granted certiorari in Arkansas Game & Fish Commission v. United States [docket; cert. petition, PDF] to determine whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause [Fifth Amendment text]. Petitioner Arkansas Game & Fish Commission [official website] sought just compensation from the US for physically taking its bottomland hardwood timber through six consecutive years of protested flooding during the sensitive growing season. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers' actions foreseeably destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate and preempted Petitioner's use and enjoyment. The US Court of Appeals for the Federal Circuit reversed the trial judgment [opinion], ruling that the US did not inflict a taking because its actions were not permanent and the flooding eventually stopped.

Also Monday the court dismissed the writ of certiorari [opinion, PDF] as improvidently granted in Vasquez v. United States [docket; cert. petition, PDF]. The court had originally agreed to determine whether the US Court of Appeals for the Seventh Circuit violated the Supreme Court's precedent on harmless error. Alexander Vasquez was convicted on drug-related charges on a considerable amount of untainted evidence. However, the prosecution submitted tapes, and the court held they could be heard as to the truth of the situation, where Vasquez's wife stated that Vasquez's attorney said Vasquez would lose the case and should plead guilty. The court heard arguments [JURIST report] in the case last month.

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