The US Supreme Court [official website] ruled 7-2 Tuesday in Moncrieffe v. Holder [opinion, PDF; JURIST report] that noncitizens have not committed an "aggravated felony" if they are convicted of possessing small amounts of marijuana, and are eligible for discretionary review of their immigration case. 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. The majority opinion, authored by Justice Sonia Sotomayor, held for the misdemeanor argument but emphasized the narrowness of the ruling:
The Government fears the consequences of our decision, but its concerns are exaggerated. The Government observes that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not require remuneration or any minimum quantity of marijuana. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid "aggravated felony" determinations, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both). Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal,assuming he satisfies the other eligibility criteria. But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one "of the world's most dangerous drug cartels," post, at 2 (opinion of ALITO, J.), just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen's case for other reasons.Adrian Moncrieffe, a native of Jamaica, pleaded guilty to possessing marijuana with intent to distribute, and the Department of Homeland Security sought to have him removed. Moncrieffe had been in the US legally since he was 3 and was caught at a traffic stop with 1.3 grams of marijuana in his car, "the equivalent of about two or three marijuana cigarettes," as Sotomayor estimated in her opinion.
Justice Samuel Alito authored a dissent, joined by Justice Clarence Thomas. "Under the Court's holding today, however, drug traffickers in about half the States are granted a dispensation. In those States, even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribution is a major source of income for some of the world's most dangerous drug cartels, but the Court now holds that an alien convicted of participating in such activity may petition to remain in this country. The Court's decision 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. Consider, for example, an alien who is arrested near the Georgia-Florida border in possession of a large supply of marijuana. Under the Court's holding, if the alien is prosecuted and convicted in Georgia for possession with intent to distribute, he is eligible for cancellation of removal. But if instead he is caught on the Florida side of the line and is convicted in a Florida court—where possession with intent to distribute a small amount of marijuana for no remuneration is covered by a separate statutory provision, the alien is likely to be ineligible. Can this be what Congress intended?"