US Supreme Court to Decide Major Immigration Question - Updated

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend).

In 2008, Moncrieffe was arrested in Georgia, with 1.3 grams of marijuana in his possession. He was charged with possession with intent to distribute. The law in Georgia is not limited to any minimum amount of marijuana and it does not require proof that the person with a drug got paid for it. Moncrieffe pleaded guilty, and was put on probation for five years.

Under federal immigration law, a non-citizen who has been convicted of an “aggravated felony” is subject to deportation. If the conviction has come under a state law, that can rise to the deportation-eligible level if it is equivalent to a felony under federal narcotics law. Under federal law, a person who has possessed with intent to distribute less than 50 kilograms of marijuana has committed a felony, although a provision in the law says that if the amount distributed was small with “no remuneration,” that is treated as only a misdemeanor. If that provision applies, then a state possession with intent to distribute would not become a deportable offense. A key issue now before the Court is whether that provision does have a role that would work to Adrian Moncrieffe’s advantage.

The Fifth Circuit (per Judge Edith Jones) stated that a federal court could not look at the facts of the case, only the statutory elements. Georgia law didn’t differentiate culpability based on the amount drugs involved. As such, Judge Jones stated it would be inappropriate for an immigration court to do so. This is called the “categorical approach.” It is followed in the Fifth Circuit, our Sixth Circuit, and several other places. Other jurisdictions (most notably New York) would consider the facts of the case. The U.S. Supreme Court will decide who is right. Oral arguments are scheduled for Wednesday. More information about the case can be found
here.
Update: The recording of the oral arguments can be streamed from here.