Because courts examine, for purposes of determining if a state conviction qualifies as an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C.S. § 1101 et seq., what the state conviction necessarily involved and not the facts underlying the case, a court must presume that the conviction rested upon nothing more than the least of the acts criminalized. The focus on the minimum conduct criminalized by the state statute is not an invitation to apply legal imagination to the state offense; there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is not only deportable, 8 U.S.C. §1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” §1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year's imprisonment, see 18 U.S.C. §§924(c)(2), 3559(a)(5). A conviction under state law “constitutes a 'felony punishable under the [CSA]' only if it proscribes conduct punishable as a felony under that federal law.”
Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. §841(a), punishable by up to five years' imprisonment, §841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe's petition for review, rejecting his reliance on §841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, §841(b)(1)(D), provides the default punishment for his offense.
Is the petitioner guilty of aggravated felony under the INA?
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). However, 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. 8 U.S.C. §1227(a)(2)(B)(1). 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. §§1158(b), 1229b(a)(1)-(2). 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 ___, 185 L. Ed. 2d, at 751 (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. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.”