Amici NIJC, Americans for Immigrant Justice, Northwest Immigrant Rights Project, and Florence Immigrant and Refugee Rights Project, represented by Baker & McKenzie pro bono attorneys, filed an amicus curiae brief in support of the Petitioner in Moncrieffe v. Holder, 569 U. S. ____, 133 S. Ct. 1678 (2013). Mr. Moncrieffe, a long-time lawful permanent resident, was convicted of a Georgia state marijuana offense that covered conduct that could be deemed either a felony or a misdemeanor under federal law. A federal marijuana distribution felony is a so-called "aggravated felony" under immigration law that renders an immigrant virtually automatic deportable; a federal marijuana misdemeanor is still a deportable offense, but allows a person more opportunities to defend against his deportation. The Court held that where a state conviction could correspond to either the federal misdemeanor or felony, it cannot be said to "categorically" match up to the federal felony definition, and so cannot be deemed to be a deportable offense.
The government in Moncrieffe argued that an immigrant in deportation proceedings should have to have a “mini-trial” to re-litigate his criminal case before the immigration judge to prove that the conviction corresponded to a misdemeanor rather than a felony under federal law. Amici explained that the government's proposed solution is impracticable and unfair. Virtually all immigrants who have been convicted of any drug offense, even simple possession of only a small amount of marijuana, are subject to mandatory detention. Once detained, it is next to impossible for immigrants to gather evidence to defend themselves in deportation proceedings. Detained immigrants have limited ability to place or receive telephone calls, and no access to fax, email, or internet. Postal services are rendered effectively nonexistent because detainees are transferred frequently between facilities with no mail forwarding. Moreover, more than half of immigrants in deportation proceedings appear pro se, and only 10% of detained immigrants are able to secure counsel.
Citing our amicus brief, the Court rejected the government's argument and ruled for the Petitioner. The Court found that individuals like Mr. Moncrieffe “have little ability” to locate witnesses, records, or otherwise “to collect evidence” to defend against aggravated felony charges brought by the government for old, low-level offenses that in many cases would in fact be misdemeanors by federal standards. Requiring immigrants to re-litigate such offenses under these circumstances defies common sense and basic notions of justice.
Amici were represented by William Schaller, Elizabeth Yingling, Brandon Moseberry, and Angela Vigil of Baker & McKenzie LLP, along with NIJC’s Claudia Valenzuela, Sarah Rose Weinman, and Chuck Roth.