Moncrieffe v. Holder
April 2, 2012
Case #: 11-702
Court Below: 662 F.3d 387 (5th Cir. 2011)
Full Text Opinion: http://www.ca5.uscourts.gov/opinions/pub/10/10-60826-CV0.wpd.pdf
Immigration: Whether the government bears the burden of proving a defendant was convicted of a drug trafficking charge that would constitute a federal felony in order to justify removal as an aggravated felon under 21 U.S.C. § 841(a)(1).
Petitioner, a Jamaican immigrant, pled guilty to a state drug possession charge and was sentenced to five years probation. As a result, the Department of Homeland Security (DHS) charged Petitioner under 8 U.S.C. § 1227 as being a deportable alien convicted of an aggregated felony because the crime involved drug trafficking, and the Immigration Judge (IJ) agreed and found Petitioner removable as an aggravated felon. The Board of Immigration Appeals (BIA) affirmed the IJ's decision and dismissed Petitioner’s appeal.
Recognizing a circuit split, the Court of Appeals for the Fifth Circuit used a categorical approach to determine whether the state conviction qualified as a felony, and agreed with the First and Sixth Circuits that the default sentence for a marijuana distribution offense is a felony unless the Petitioner proves he was convicted only of misdemeanor conduct.
Petitioner argues that the Fifth Circuit's holding is contrary to the Supreme Court’s "categorical approach" which places the burden on the government to show the defendant was actually "convicted of conduct that would constitute a federal felony" when the record is unclear.