The
oral argument in Moncrieffe is well worth a read for anyone interested in the immigration consequences of a conviction for possession of a controlled substance with intent to distribute.
oral argument in Moncrieffe is well worth a read for anyone interested in the immigration consequences of a conviction for possession of a controlled substance with intent to distribute.
The issue is whether conviction under State statutes can be considered “felonies” under the federal statute, when the federal statute includes an exception for cases that are of a “small amount” and for “no remuneration.” Put simply, under the Controlled Substances Act, possession with intent to distribute is not a felony in the context of sharing a small amount of the drug, at a party for example. To be deported as an Aggravated Felon, the State conviction must have been punishable under the federal statute. And if someone would not have been convicted of a felony under the federal statute, it is a clear injustice to charge them as an Aggravated Felon.
The central issue in these cases has been who has the burden to prove that the possession was of a small amount and for no remuneration. The government usually will have evidence to the contrary if it exists. But the alien often has nothing – short of subpoenaing the arresting officer to come testify at Immigration court.
The
justices seem solidly in favor of rejecting the government’s position, but it is unclear whether they will conclude that it is the government’s burden to prove that the
distribution was not of a small amount or was for remuneration. If it is the immigrant’s burden, then people will likely continue to be
deported as Aggravated Felons even when what they did would have been a misdemeanor under the federal statute.
justices seem solidly in favor of rejecting the government’s position, but it is unclear whether they will conclude that it is the government’s burden to prove that the
distribution was not of a small amount or was for remuneration. If it is the immigrant’s burden, then people will likely continue to be
deported as Aggravated Felons even when what they did would have been a misdemeanor under the federal statute.