For certain crimes a non-citizen, but legal resident, may be deported if the crime is an "aggravated felony" under 8 U.S.C. § 1227(a). In some cases the deportable defendant cannot even seek relief in the form of a formal hearing where he could otherwise present mitigating evidence and request non-removal. Possession of marijuana with the intent to distribute is, or at least was one of those automatic deportable offenses (see § 1101 (a)(43) (B): illicit trafficking of a controlled substance).
Despite the language of the federal Controlled Substances Act, the Supreme Court held that a conviction for a marijuana distribution offense is not an aggravated felony if the crime did not involve any remuneration (sales) and the amount of the marijuana was minimal. Thus, if a non-citizen is convicted of distributing marijuana, and not for sales and the amount was small, he cannot be automatically removed from the country. (The facts of the situation are not relevant, just the language of the statute of which the defendant was convicted.)
The case before the Supreme Court involved a legal resident who was arrested for possessing approximately 1.3 grams of marijuana. He was convicted in Georgia, under state law, for possession with intent to distribute. The statute did not distinguish sales and non-sales distribution. The Federal Government sought removal, because under the Federal Code, the crime is an aggravated felony, punishable up to five years in federal prison. (See 18 U.S.C. § 841(a)-(b).) A conviction under state law "constitutes a felony punishable under the [the federal Code] only if it proscribes conduct punishable as a felony under that federal law." Moncrieffe v. Holder (2013) No 11-702, quoting Lopez v. Gonzales, 549 U. S. 47, 60. A judge then ordered the defendant removed.
The court noted that federal law has two provisions regarding the distribution of marijuana: 1) § 841(b)(1), which calls for imprisonment up to five years ( which the government relied on) and 2) § 841(b)(4), which allows for a misdemeanor where there was no remuneration and the amount of marijuana minimal. The government argued that section 841(b)(1) was the "default" provision and that 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The court rejected this argument and held that if a defendant is convicted of a non-sales distribution, automatic deportation cannot thereby result.
The court, however, found that because the Georgia law under which the defendant was convicted does not distinguish distribution for money or not for money, either federal law could apply, in which case the defendant had a right to a hearing.
Critics of this decision will argue that similarly situated people will be treated differently, depending on how specific state criminal laws are. In other words, if a state law (such as in Georgia) does not distinguish between sales and non-sales distribution of marijuana, a criminal defendant will get the benefit of a hearing and non-automatic removal, even if he was in fact selling. However, a similarly situated defendant in a state such as California, that has separate statutes for sales and non-sales distribution will be subject to automatic deportation, without a right to a hearing.
To read the Supreme Court opinion, click here.