Case Study: Moncrieffe V. Holder

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Case Study: Moncrieffe V. Holder



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The government asserted that courts should apply the categorical approach and find that, because the elements of Moncrieffe's state conviction match those of the federal felony of possession with intent to distribute, he is an aggravated felon. But only presumptively so. The government maintains that, in situations like these, immigration judges should hold a hearing where non-citizens, like Moncrieffe, could present evidence that their crime involved only a small amount of marijuana and no remuneration. This would allow the judge to determine, based on the underlying facts, that the non-citizen should not be considered an aggravated felon. That seems reasonable enough on its face, but there are several big troubles with the government's position.

First, if someone is an aggravated felon, he is subject to mandatory detention and deportation, without any opportunity for relief. As the government argued to the Court, Congress has repeatedly restricted access to relief from deportation in favor of mandatory deportation provisions because it did not want immigration judges exercising discretion on these matters. Chief Justice Roberts wondered how the government could claim that discretion has been intentionally taken away while also stating that such discretion should nevertheless be exercised. Justice Kagan told government counsel that "your arguments all go towards a very purist solution.

Finally, the government's approach turns the categorical approach on its head. In contrast to how the categorical approach has worked for decades, identifying the minimum conduct necessary to satisfy the essential elements of the crime, the government seeks to have immigration adjudicators assume the maximum conduct that could be punished in these cases, even in the absence of such findings by the criminal court. It would then place the burden on the non-citizen to show that the court should ratchet down from there.

This is not the first time that the government has argued for the ability to go outside the four corners of the conviction to determine the immigration consequences of crimes. In Carachuri-Rosendo v. Holder , the Supreme Court unanimously rejected the government's position that immigration judges should be able to go beyond the conviction to elevate a misdemeanor drug possession offense to an aggravated felony. The difference here is that the government wants to invent a proceeding that would permit the immigration judge to go outside the conviction to determine if the court should go down from an aggravated felony. That difference should not change the result. Going outside the conviction, and having individual hearings in thousands of cases to determine whether a state misdemeanor conviction involved underlying facts that could have only been prosecutable as a federal misdemeanor, is an invitation for a mess.

It works against the usual government assertions of the need for efficiency and uniformity in immigration proceedings. Practically speaking, it would be a nearly impossible challenge for uncounseled non-citizens in jail, often far from their former homes and potential witnesses and sometimes years removed from their offense, to marshal the necessary evidence to prove to an immigration judge that the facts underlying a conviction fit the misdemeanor federal offense.

The categorical approach's appeal is that it safeguards basic concepts of due process, uniformity, efficiency and proportionality. In the already complicated world where criminal law and immigration law overlap, the court should reject the government's muddled approach and stick with the categorical approach as it has traditionally been applied. Tags: immigration law , Kevin Lapp , Supreme Court.

Email This BlogThis! No comments:. Newer Post Older Post Home. Subscribe to: Post Comments Atom. Search This Site. WikiLeaks Yxta Maya Murray. Disability and Voting In evaluating Prop. Levenson assesses ef United States, in which a National Immigrant Justice Center client argued that she had a right to effective assistance of counsel even though her case—in which her criminal….

When I met Ahmed he had already spent six years in prison. Scribbled Notes, Shattered Lives. When my colleagues and I visit immigration detention centers to do Know Your Rights presentations and conduct legal intake, we are not able to bring computers with us. As result, the tangible outcome of any Know Your Rights visit is a stack of handwritten intake worksheets prepared by us and our…. The Nightmare of Solitary Confinement. This week, I wanted to share an…. Holder: Challenging harsh immigration "aggravated felony" laws. The U. Supreme Court's ruling this summer on Arizona's SB immigration law held the attention of a nation watching to see how far states would be allowed to go in writing its own immigration laws.

But the Court hears at least a handful of immigration cases each term, and each one has the…. Collateral Damage.

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