Minor Marijuana Possession Does Not Warrant Automatic Deportation, Supreme Court Rules

The U.S. Supreme Court held Tuesday that an immigrant should not have been automatically deported for a minor marijuana conviction. In a 7-2 decision, Justice Sonia Sotomayor said a state charge of possession with intent to distribute for possession of an amount equivalent to two or three marijuana joints was not an “aggravated felony.”

Under U.S. law, immigrants facing deportation typically have an opportunity to contest it. However, if the immigrant has been convicted of crimes categorized as “aggravated felonies” in the Immigration and Nationality Act, deportation is automatic, and not even claims that the individual is seeking asylum can stop that person’s removal from the country. The “aggravated felonies” category includes illicit drug trafficking offenses, but it does not include mere drug possession. Under federal drug law, Jamaican national Adrian Moncrieffe would not have been charged with possession with intent distribute for mere possession of the 1.3 grams found in his car during a traffic stop, with no evidence that money changed hands. But Georgia law defines crimes differently, and immigration agents determined that his guilty plea to the state crime of the same name qualified him for automatic deportation.

Justice Sotomayor rejected immigration agents’ equivocation of Moncrieffe with a commercial drug dealer:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

This decision was a case of a state crime misapplied to a federal immigration law. But it also highlights another area of the law in which drug use is harshly over-punished. While Moncrieffe, who has lived in the United States since he was three years old, rightly escaped automatic deportation, those immigrants who are found guilty of a distribution-related crime under the federal Controlled Substances Act will not fare as well.