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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–702
_________________
ADRIAN MONCRIEFFE, PETITIONER
v. ERIC
H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states
court of appeals for the fifth circuit
[April 23, 2013]
Justice Sotomayor delivered the opinion of the
Court.
The Immigration and Nationality Act (INA),
66Stat. 163, 8 U. S. C. §1101
et seq.,
provides that a noncitizen who has been convicted of an “aggravated
felony” may be deported from this country. The INA also prohibits
the Attorney General from granting discretionary relief from
removal to an aggravated felon, no matter how compelling his case.
Among the crimes that are classified as aggravated felonies, and
thus lead to these harsh consequences, are illicit drug trafficking
offenses. We must decide whether this category includes a state
criminal statute that extends to the social sharing of a small
amount of marijuana. We hold it does not.
I
A
The INA allows the Government to deport
various classes of noncitizens, such as those who overstay their
visas, and those who are convicted of certain crimes while in the
United States, including drug offenses. §1227. Ordinarily, when a
noncitizen is found to be deportable on one of these grounds, he
may ask the Attorney General for certain forms of discretionary
relief from removal, like asylum (if he has a well-founded fear of
persecution in his home country) and cancellation of removal (if,
among other things, he has been lawfully present in the United
States for a number of years). §§1158, 1229b. But if a noncitizen
has been convicted of one of a narrower set of crimes classified as
“aggravated felonies,” then he is not only deportable,
§1227(a)(2)(A)(iii), but also ineligible for these discretionary
forms of relief. See §§1158(b)(2)(A)(ii), (B)(i); §§1229b(a)(3),
(b)(1)(C).[
1]
The INA defines “aggravated felony” to include a
host of offenses. §1101(a)(43). Among them is “illicit trafficking
in a controlled substance.” §1101(a)(43)(B). This general term is
not defined, but the INA states that it “includ[es] a drug
trafficking crime (as defined in section 924(c) of title 18).”
Ibid. In turn, 18 U. S. C. §924(c)(2) defines
“drug trafficking crime” to mean “any felony punishable under the
Controlled Substances Act,” or two other statues not relevant here.
The chain of definitions ends with §3559(a)(5), which provides that
a “felony” is an offense for which the “maximum term of
imprisonment authorized” is “more than one year.” The upshot is
that a noncitizen’s conviction of an offense that the Controlled
Substances Act (CSA) makes punishable by more than one year’s
imprisonment will be counted as an “aggravated felony” for
immigration purposes. A conviction under either state or federal
law may qualify, but a “state offense constitutes a ‘felony
punishable under the Controlled Substances Act’ only if it
proscribes conduct punishable as a felony under that federal law.”
Lopez v.
Gonzales,
549 U.S.
47, 60 (2006).
B
Petitioner Adrian Moncrieffe is a Jamaican
citizen who came to the United States legally in 1984, when he was
three. During a 2007 traffic stop, police found 1.3 grams of
marijuana in his car. This is the equivalent of about two or three
marijuana cigarettes. Moncrieffe pleaded guilty to possession of
marijuana with intent to distribute, a violation of Ga. Code Ann.
§16–13–30(j)(1) (2007). Under a Georgia statute providing more
lenient treatment to first-time offenders, §42–8–60(a) (1997), the
trial court withheld entering a judgment of conviction or imposing
any term of imprisonment, and instead required that Moncrieffe
complete five years of probation, after which his charge will be
expunged altogether.[
2] App. to
Brief for Petitioner 11–15.
Alleging that this Georgia conviction
constituted an aggravated felony, the Federal Government sought to
deport Moncrieffe. The Government reasoned that possession of
marijuana with intent to distribute is an offense under the CSA, 21
U. S. C. §841(a), punishable by up to five years’
imprisonment, §841(b)(1)(D), and thus an aggravated felony. An
Immigration Judge agreed and ordered Moncrieffe removed. App. to
Pet. for Cert. 14a–18a. The Board of Immigration Appeals (BIA)
affirmed that conclusion on appeal.
Id., at 10a–13a.
The Court of Appeals denied Moncrieffe’s
petition for review. The court rejected Moncrieffe’s reliance upon
§841(b)(4), a provision that, in effect, makes marijuana
distribution punishable only as a misdemeanor if the offense
involves a small amount of marijuana for no remuneration. It held
that in a federal criminal prosecution, “the default sentencing
range for a marijuana distribution offense is the CSA’s felony
provision, §841(b)(1)(D), rather than the misdemeanor provision.”
662 F.3d 387, 392 (CA5 2011). Because Moncrieffe’s Georgia offense
penalized possession of marijuana with intent to distribute, the
court concluded that it was “equivalent to a federal felony.”
Ibid.
We granted certiorari, 566 U. S. ___
(2012), to resolve a conflict among the Courts of Appeals with
respect to whether a conviction under a statute that criminalizes
conduct described by both §841’s felony provision and its
misdemeanor provision, such as a statute that punishes all
marijuana distribution without regard to the amount or
remuneration, is a conviction for an offense that “proscribes
conduct punishable as a felony under” the CSA.[
3]
Lopez, 549 U. S., at 60. We now
reverse.
II
A
When the Government alleges that a state
conviction qualifies as an “aggravated felony” under the INA, we
generally employ a “categorical approach” to determine whether the
state offense is comparable to an offense listed in the INA. See,
e.g., Nijhawan v.
Holder,
557 U.S.
29, 33–38 (2009);
Gonzales v.
Duenas-Alvarez,
549 U.S.
183, 185–187 (2007). Under this approach we look “not to the
facts of the particular prior case,” but instead to whether “the
state statute defining the crime of conviction” categorically fits
within the “generic” federal definition of a corresponding
aggravated felony.
Id., at 186 (citing
Taylor v.
United States,
495 U.S.
575, 599–600 (1990)). By “generic,” we mean the offenses must
be viewed in the abstract, to see whether the state statute shares
the nature of the federal offense that serves as a point of
comparison. Accordingly, a state offense is a categorical match
with a generic federal offense only if a conviction of the state
offense “ ‘necessarily’ involved . . . facts
equating to [the] generic [federal offense].”
Shepard v.
United States,
544 U.S.
13, 24 (2005) (plurality opinion). Whether the noncitizen’s
actual conduct involved such facts “is quite irrelevant.”
United
States ex rel. Guarino v.
Uhl, 107 F.2d 399, 400
(CA2 1939) (L. Hand, J.).
Because we examine what the state conviction
necessarily involved, not the facts underlying the case, we must
presume that the conviction “rested upon [nothing] more than the
least of th[e] acts” criminalized, and then determine whether even
those acts are encompassed by the generic federal offense.
Johnson v.
United States,
559
U.S. 133, 137 (2010); see
Guarino, 107 F. 2d, at
400. But this rule is not without qualification. First, our cases
have addressed state statutes that contain several different
crimes, each described separately, and we have held that a court
may determine which particular offense the noncitizen was convicted
of by examining the charging document and jury instructions, or in
the case of a guilty plea, the plea agreement, plea colloquy, or
“ ‘some comparable judicial record’ of the factual basis for
the plea.”
Nijhawan, 557 U. S., at 35 (quoting
Shepard, 544 U. S., at 26). Sec- ond, our focus on the
minimum conduct criminalized by the state statute is not an
invitation to apply “legal imagination” to the state offense; there
must be “a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls
outside the generic definition of a crime.”
Duenas-Alvarez,
549 U. S., at 193.
This categorical approach has a long pedigree in
our Nation’s immigration law. See Das, The Immigration Penalties of
Criminal Convictions: Resurrecting Categorical Analysis in
Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1702,
1749–1752 (2011) (tracing judicial decisions back to 1913). The
reason is that the INA asks what offense the noncitizen was
“convicted” of, 8 U. S. C. §1227(a)(2)(A)(iii), not what
acts he committed. “[C]on- viction” is “the relevant statutory
hook.”[
4]
Carachuri-Rosendo v.
Holder, 560 U. S. ___, ___
(2010) (slip op., at 16); see
United States ex rel.
Mylius v.
Uhl, 210 F. 860, 862 (CA2 1914).
B
The aggravated felony at issue here, “illicit
trafficking in a controlled substance,” is a “generic crim[e].”
Nijhawan, 557 U. S., at 37. So the categorical approach
applies.
Ibid. As we have explained,
supra, at 2–3,
this aggravated felony encompasses all state offenses that
“proscrib[e] conduct punishable as a felony under [the CSA].”
Lopez, 549 U. S., at 60. In other words, to satisfy the
categorical approach, a state drug offense must meet two
conditions: It must “necessarily” proscribe conduct that is an
offense under the CSA, and the CSA must “necessarily” prescribe
felony punishment for that conduct.
Moncrieffe was convicted under a Georgia statute
that makes it a crime to “possess, have under [one’s] control,
manufacture, deliver, distribute, dispense, administer, purchase,
sell, or possess with intent to distribute mari- juana.” Ga. Code
Ann. §16–13–30(j)(1). We know from his plea agreement that
Moncrieffe was convicted of the last of these offenses. App. to
Brief for Petitioner 11;
Shepard, 544 U. S., at 26. We
therefore must determine whether possession of marijuana with
intent to distribute is “necessarily” conduct punishable as a
felony under the CSA.
We begin with the relevant conduct criminalized
by the CSA. There is no question that it is a federal crime to
“possess with intent to . . . distribute . . .
a controlled substance,” 21 U. S. C. §841(a)(1), one of
which is mari- juana, §812(c).[
5] So far, the state and federal provisions correspond.
But this is not enough, because the generically defined federal
crime is “any felony punishable under the Controlled Substances
Act,” 18 U. S. C. §924(c)(2), not just any “offense under
the CSA.” Thus we must look to what punishment the CSA imposes for
this offense.
Section 841 is divided into two subsections that
are relevant here: (a), titled “Unlawful acts,” which includes the
offense just described, and (b), titled “Penalties.” Subsection (b)
tells us how “any person who violates subsection (a)” shall be
punished, depending on the circumstances of his crime (
e.g.,
the type and quantity of controlled substance involved, whether it
is a repeat offense).[
6]
Subsection (b)(1)(D) provides that if a person commits a violation
of subsection (a) involving “less than 50 kilograms of marihuana,”
then “such person shall, except as provided in paragraphs (4) and
(5) of this subsection, be sentenced to a term of imprisonment of
not more than 5 years,”
i.e., as a felon. But one of the
exceptions is important here. Paragraph (4) provides,
“Notwithstanding paragraph (1)(D) of this subsection, any person
who violates subsection (a) of this section by distributing a small
amount of marihuana for no remuneration shall be treated as” a
simple drug possessor, 21 U. S. C. §844, which for our
purposes means as a misdemeanant.[
7] These dovetailing provisions create two mutually
exclusive categories of punishment for CSA marijuana distribution
offenses: one a felony, and one not. The only way to know whether a
marijuana distribution offense is “punishable as a felony” under
the CSA,
Lopez, 549 U. S., at 60, is to know whether
the conditions described in paragraph (4) are present or
absent.
A conviction under the same Georgia statute for
“sell[ing]” marijuana, for example, would seem to establish
remuneration. The presence of remuneration would mean that
paragraph (4) is not implicated, and thus that the conviction is
necessarily for conduct punishable as a felony under the CSA (under
paragraph (1)(D)). In contrast, the fact of a conviction for
possession with intent to distribute marijuana, standing alone,
does not reveal whether either remuneration or more than a small
amount of marijuana was involved. It is possible neither was; we
know that Georgia prosecutes this offense when a defendant
possesses only a small amount of marijuana, see,
e.g.,
Taylor v.
State, 260 Ga. App. 890,
581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution”
does not require remuneration, see,
e.g., Hadden v.
State, 181 Ga. App. 628, 628–629,
353 S.E.2d 532, 533–534 (1987). So Moncrieffe’s conviction
could correspond to either the CSA felony or the CSA misdemeanor.
Ambiguity on this point means that the conviction did not
“necessarily” involve facts that correspond to an offense
punishable as a felony under the CSA. Under the categorical
approach, then, Moncrieffe was not convicted of an aggravated
felony.
III
A
The Government advances a different approach
that leads to a different result. In its view, §841(b)(4)’s
misdemeanor provision is irrelevant to the categorical analysis
because paragraph (4) is merely a “mitigating exception,” to the
CSA offense, not one of the “elements” of the offense. Brief for
Respondent 12. And because possession with intent to distribute
marijuana is “presumptive[ly]” a felony under the CSA, the
Government asserts, any state offense with the same elements is
presumptively an aggravated felony.
Id., at 37. These two
contentions are related, and we reject both of them.
First, the Government reads our cases to hold
that the categorical approach is concerned only with the “elements”
of an offense, so §841(b)(4) “is not relevant” to the categorical
analysis.
Id., at 20. It is enough to satisfy the
categorical inquiry, the Government suggests, that the “elements”
of Moncrieffe’s Georgia offense are the same as those of the CSA
offense: (1) possession (2) of marijuana (a controlled substance),
(3) with intent to distribute it. But that understanding is
inconsistent with
Carachuri-Rosendo, our only decision to
address both “elements” and “sentencing factors.” There we
recognized that when Congress has chosen to define the generic
federal offense by reference to punishment, it may be necessary to
take account of federal sentencing factors too. See 560 U. S.,
at ___ (slip op., at 3). In that case the relevant CSA offense was
simple possession, which “becomes a ‘felony punishable under the
[CSA]’ only because the sentencing factor of recidivism authorizes
additional punishment beyond one year, the criterion for a felony.”
Id., at ___ (Scalia, J., concurring in judgment) (slip op.,
at 2). We therefore called the generic federal offense “recidivist
simple possession,” even though such a crime is not actually “a
separate offense” under the CSA, but rather an
“ ‘amalgam’ ” of offense elements and sentencing factors.
Id., at ___, and n. 3, ___ (majority opinion) (slip
op., at 3, and n. 3, 7).
In other words, not only must the state offense
of conviction meet the “elements” of the generic federal offense
defined by the INA, but the CSA must punish that offense as a
felony. Here, the facts giving rise to the CSA offense establish a
crime that may be either a felony or a misdemeanor, depending upon
the presence or absence of certain factors that are not themselves
elements of the crime. And so to qualify as an aggravated felony, a
conviction for the predicate offense must necessarily establish
those factors as well.
The Government attempts to distinguish
Carachuri-Rosendo on the ground that the sentencing factor
there was a “narrow” aggravating exception that turned a
misdemeanor into a felony, whereas here §841(b)(4) is a narrow
mitigation exception that turns a felony into a misdemeanor. Brief
for Respondent 40–43. This argument hinges upon the Government’s
second assertion: that any marijuana distribution conviction is
“presumptively” a felony. But that is simply incorrect, and the
Government’s argument collapses as a result. Marijuana distribution
is neither a felony nor a misdemeanor until we know whether the
conditions in paragraph (4) attach: Section 841(b)(1)(D) makes the
crime punishable by five years’ imprisonment “
except as
provided” in paragraph (4), and §841(b)(4) makes it punishable as a
misdemeanor “
[n]otwithstanding paragraph (1)(D)” when only
“a small amount of marihuana for no remuneration” is involved.
(Emphasis added.) The CSA’s text makes neither provision the
default. Rather, each is drafted to be exclusive of the other.
Like the BIA and the Fifth Circuit, the
Government believes the felony provision to be the default because,
in practice, that is how federal criminal prosecutions for
marijuana distribution operate. See 662 F. 3d, at 391–392;
Matter of Aruna, 24 I. & N. Dec. 452
,
456–457 (2008); Brief for Respondent 18–23. It is true that every
Court of Appeals to have considered the question has held that a
defendant is eligible for a 5-year sentence under §841(b)(1)(D) if
the Government proves he possessed marijuana with the intent to
distribute it, and that the Government need not negate the
§841(b)(4) factors in each case. See
, e.g., United
States v.
Outen,
286 F.3d 622, 636–639 (CA2 2002) (describing §841(b)(4) as a
“mitigating exception”);
United States v.
Hamlin,
319 F.3d 666, 670–671 (CA4 2003) (collecting cases). Instead,
the burden is on the defendant to show that he qualifies for the
lesser sentence under §841(b)(4). Cf.
id., at 671.
We cannot discount §841’s text, however, which
creates no default punishment, in favor of the procedural overlay
or burdens of proof that would apply in a hypothetical federal
criminal prosecution. In
Carachuri-Rosendo, we rejected the
Fifth Circuit’s “ ‘hypothetical approach,’ ” which
examined whether conduct “ ‘could have been punished as a
felony’ ‘had [it] been prosecuted in federal court.’ ” 560
U. S., at ___, ___ (slip op., at 8, 11).[
8] The outcome in a hypothetical prosecution is
not the relevant inquiry. Rather, our “more focused, categorical
inquiry” is whether the record of conviction of the predicate
offense necessarily establishes conduct that the CSA, on its own
terms, makes punishable as a felony.
Id., at ___ (slip op.,
at 16).
The analogy to a federal prosecution is
misplaced for another reason. The Court of Appeals cases the
Government cites distinguished between elements and sentencing
factors to determine which facts must be proved to a jury, in light
of the Sixth Amendment concerns addressed in
Apprendi v.
New Jersey,
530 U.S.
466 (2000). The courts considered which “provision
. . . states a complete crime upon the fewest
facts,”
Outen, 286 F. 3d, at 638, which was
significant after
Apprendi to identify what a jury had to
find before a defendant could receive §841(b)(1)(D)’s maximum
5-year sentence. But those concerns do not apply in this context.
Here we consider a “generic” federal offense in the abstract, not
an actual federal offense being prosecuted before a jury. Our
concern is only which facts the CSA relies upon to distinguish
between felonies and misdemeanors, not which facts must be found by
a jury as opposed to a judge, nor who has the burden of proving
which facts in a federal prosecution.[
9]
Because of these differences, we made clear in
Carachuri-Rosendo that, for purposes of the INA, a generic
fed- eral offense may be defined by reference to both
“ ‘elements’ in the traditional sense” and sentencing factors.
560 U. S., at ___, n. 3, ___ (slip op., at 3, n. 3,
7); see also
id., at ___ (Scalia, J., concurring in
judgment) (slip op., at 3) (describing the generic federal offense
there as “the Controlled Substances Act felony of
possession-plus-recidivism”). Indeed, the distinction between
“elements” and “sentencing factors” did not exist when Congress
added illicit drug trafficking to the list of aggravated felonies,
Anti-Drug Abuse Act of 1988, 102Stat. 4469–4470, and most courts at
the time understood both §841(b)(1)(D) and §841(b)(4) to contain
sentencing factors that draw the line between a felony and a
misdemeanor. See,
e.g., United States v.
Campuzano, 905 F.2d 677, 679 (CA2 1990).
Carachuri-Rosendo controls here.
Finally, there is a more fundamental flaw in the
Government’s approach: It would render even an undisputed
misdemeanor an aggravated felony. This is “just what the English
language tells us not to expect,” and that leaves us “very wary of
the Government’s position.”
Lopez, 549 U. S., at 54.
Consider a conviction under a New York statute that provides, “A
person is guilty of criminal sale of marihuana in the fifth degree
when he knowingly and unlawfully sells,
without
consideration, [marihuana] of an aggregate weight of
two
grams or less; or one cigarette containing marihuana.”
N. Y. Penal Law Ann. §221.35 (West 2008) (emphasis added).
This statute criminalizes only the distribution of a small amount
of marijuana for no remuneration, and so all convictions under the
statute would fit within the CSA misdemeanor provision, §841(b)(4).
But the Government would categorically deem a conviction under this
statute to be an aggravated felony, because the statute contains
the corresponding “elements” of (1) distributing (2) marijuana, and
the Government believes all marijuana distribution offenses are
punishable as felonies.
The same anomaly would result in the case of a
noncitizen convicted of a misdemeanor in federal court under
§§841(a) and (b)(4) directly. Even in that case, under the
Government’s logic, we would need to treat the federal misdemeanor
conviction as an aggravated felony, because the conviction
establishes elements of an offense that is presumptively a felony.
This cannot be. “We cannot imagine that Congress took the trouble
to incorporate its own statutory scheme of felonies and
misdemeanors,” only to have courts presume felony treatment and
ignore the very factors that distinguish felonies from
misdemeanors.
Lopez, 549 U. S., at 58.
B
Recognizing that its approach leads to
consequences Congress could not have intended, the Government
hedges its argument by proposing a remedy: Noncitizens should be
given an opportunity during immigration proceedings to demonstrate
that their predicate marijuana distribution convictions involved
only a small amount of marijuana and no remuneration, just as a
federal criminal defendant could do at sentencing. Brief for
Respondent 35–39. This is the procedure adopted by the BIA in
Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702
(2012), and endorsed by Justice Alito’s dissent,
post, at
11–12.
This solution is entirely inconsistent with both
the INA’s text and the categorical approach. As noted, the relevant
INA provisions ask what the noncitizen was “convicted of,” not what
he did, and the inquiry in immigration proceedings is limited
accordingly. 8 U. S. C. §§1227(a)(2)(A)(iii),
1229b(a)(3); see
Carachuri-Rosendo, 560 U. S., at ___
(slip op., at 11). The Government cites no statutory authority for
such case-specific factfinding in immigration court, and none is
apparent in the INA. Indeed, the Government’s main categorical
argument would seem to preclude this inquiry: If the Government
were correct that “the fact of a marijuana-distribution conviction
alone constitutes a CSA felony,” Brief for Respondent 37,
then all marijuana distribution convictions would categorically be
convictions of the drug trafficking aggravated felony, mandatory
deportation would follow under the statute, and there would be no
room for the Government’s follow-on factfinding procedure. The
Government cannot have it both ways.
Moreover, the procedure the Government envisions
would require precisely the sort of
post hoc
investigation into the facts of predicate offenses that we have
long deemed undesirable. The categorical approach serves
“practical” purposes: It promotes judicial and administrative
efficiency by precluding the relitigation of past convictions in
minitrials conducted long after the fact.
Chambers v.
United States,
555 U.S.
122, 125 (2009); see also
Mylius, 210 F., at 862–863.
Yet the Government’s approach would have our Nation’s overburdened
immigration courts entertain and weigh testimony from, for example,
the friend of a noncitizen who may have shared a marijuana
cigarette with him at a party, or the local police officer who
recalls to the contrary that cash traded hands. And, as a result,
two noncitizens, each “convicted of” the same offense, might obtain
different aggravated felony determinations depending on what
evidence remains available or how it is perceived by an individual
immigration judge. The categorical approach was designed to avoid
this “potential unfairness.”
Taylor, 495 U. S., at 601;
see also
Mylius, 210 F., at 863.
Furthermore, the minitrials the Government
proposes would be possible only if the noncitizen could locate
witnesses years after the fact, notwithstanding that during removal
proceedings noncitizens are not guaranteed legal representation and
are often subject to mandatory detention, §1226(c)(1)(B), where
they have little ability to collect evidence. See Katzmann, The
Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo.
J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant
Justice Center et al. as
Amici Curiae 5–18; Brief for
Immigration Law Professors as
Amici Curiae 27–32. A
noncitizen in removal proceedings is not at all similarly situated
to a defendant in a federal criminal prosecution. The Government’s
suggestion that the CSA’s procedures could readily be replicated in
immigration proceedings is therefore misplaced. Cf.
Carachuri-Rosendo, 560 U. S., at ___ (slip op., at
14–15) (rejecting the Government’s argument that procedures
governing determination of the recidivism sentencing factor could
“be satisfied during the immigration proceeding”).
The Government defends its proposed immigration
court proceedings as “a subsequent step
outside the categorical
approach in light of Section 841(b)(4)’s
‘circumstance-specific’ nature.” Brief for Respondent 37. This
argument rests upon
Nijhawan, in which we considered another
aggravated felony, “an offense that . . . involves fraud
or deceit in which the loss to the victim or victims exceeds
$10,000.” 8 U. S. C. §1101(a)(43)(M)(i). We held that the
$10,000 threshold was not to be applied categorically as a required
component of a generic offense, but instead called for a
“circumstance-specific approach” that allows for an examination, in
immigration court, of the “particular circumstances in which an
offender committed the crime on a particular occasion.”
Nijhawan, 557 U. S., at 38–40. The Government suggests
the §841(b)(4) factors are like the monetary threshold, and thus
similarly amenable to a circumstance-specific inquiry.
We explained in
Nijhawan, however, that
unlike the provision there, “illicit trafficking in a controlled
substance” is a “generic crim[e]” to which the categorical approach
applies, not a circumstance-specific provision.
Id., at 37;
see also
Carachuri-Rosendo, 560 U. S., at ___,
n. 11 (slip op., at 12–13, n. 11). That distinction is
evident in the structure of the INA. The monetary threshold is a
limitation, written into the INA itself, on the scope of the
aggravated felony for fraud. And the monetary threshold is set off
by the words “in which,” which calls for a circumstance-specific
examination of “the conduct involved ‘
in’ the commission of
the offense of conviction.”
Nijhawan, 557 U. S., at 39.
Locating this exception in the INA proper suggests an intent to
have the relevant facts found in immigration proceedings. But
where, as here, the INA incorporates other criminal statutes
wholesale, we have held it “must refer to generic crimes,” to which
the categorical approach applies.
Id., at 37.
Finally, the Government suggests that the
immigration court’s task would not be so daunting in some cases,
such as those in which a noncitizen was convicted under the New
York statute previously discussed or convicted directly under
§841(b)(4). True, in those cases, the record of conviction might
reveal on its face that the predicate offense was punishable only
as a misdemeanor. But most States do not have stand-alone offenses
for the social sharing of marijuana, so minitrials concerning
convictions from the other States, such as Georgia, would be
inevitable.[
10] The
Government suggests that even in these other States, the record of
conviction may often address the §841(b)(4) factors, because
noncitizens “will be advised of the immigration consequences of a
conviction,” as defense counsel is required to do under
Padilla v.
Kentucky, 559 U.S. 359 (2010), and as a
result counsel can build an appropriate record when the facts are
fresh. Brief for Respondent 38. Even assuming defense counsel
“will” do something simply because it is required of effective
counsel (an assumption experience does not always bear out), this
argument is unavailing because there is no reason to believe that
state courts will regularly or uniformly admit evidence going to
facts, such as remuneration, that are irrelevant to the offense
charged.
In short, to avoid the absurd consequences that
would flow from the Government’s narrow understanding of the
categorical approach, the Government proposes a solution that
largely undermines the categorical approach. That the only cure is
worse than the disease suggests the Government is simply wrong.
C
The Government fears the consequences of our
decision, but its concerns are exaggerated. The Government observes
that, like Georgia, about half the States criminalize marijuana
distribution through statutes that do not require remuneration or
any minimum quantity of mari- juana.
Id., at 26–28. As a
result, the Government contends, noncitizens convicted of marijuana
distribution offenses in those States will avoid “aggravated
felony” determinations, purely because their convictions do not
resolve whether their offenses involved federal felony conduct or
misdemeanor conduct, even though many (if not most) prosecutions
involve either remuneration or larger amounts of marijuana (or
both).
Escaping aggravated felony treatment does not
mean escaping deportation, though. It means only avoiding mandatory
removal. See
Carachuri-Rosendo, 560 U. S., at ___ (slip
op., at 17). Any marijuana distribution offense, even a
misdemeanor, will still render a noncitizen deportable as a
controlled substances offender. 8 U. S. C.
§1227(a)(2)(B)(i). At that point, having been found not to be an
aggravated felon, the noncitizen may seek relief from removal such
as asylum or cancellation of removal, assuming he satisfies the
other eligibility criteria. §§1158(b), 1229b(a)(1)–(2). But those
forms of relief are discretionary. The Attorney General may, in his
discretion, deny relief if he finds that the noncitizen is actually
a member of one “of the world’s most dangerous drug cartels,”
post, at 2 (opinion of Alito, J.), just as he may deny
relief if he concludes the negative equities outweigh the positive
equities of the noncitizen’s case for other reasons. As a result,
“to the extent that our rejection of the Government’s broad
understanding of the scope of ‘aggravated felony’ may have any
practical effect on policing our Nation’s borders, it is a limited
one.”
Carachuri-Rosendo, 560 U. S., at ___ (slip op.,
at 17).
In any event, serious drug traffickers may be
adjudi- cated aggravated felons regardless, because they will
likely be convicted under greater “trafficking” offenses that
necessarily establish that more than a small amount of marijuana
was involved. See,
e.g., Ga. Code Ann. §16–13–31(c)(1)
(Supp. 2012) (separate provision for trafficking in more than 10
pounds of marijuana). Of course, some offenders’ conduct will fall
between §841(b)(4) conduct and the more serious conduct required to
trigger a “trafficking” statute. Brief for Respondent 30. Those
offenders may avoid aggravated felony status by operation of the
categorical approach. But the Government’s objection to that
underinclusive result is little more than an attack on the
categorical approach itself.[
11] We prefer this degree of imperfection to the heavy
burden of relitigating old prosecutions. See
supra, at
15–16. And we err on the side of underinclusiveness because
ambiguity in criminal statutes referenced by the INA must be
construed in the noncitizen’s favor. See
Carachuri-Rosendo,
560 U. S., at ___ (slip op., at 17);
Leocal v.
Ashcroft,
543 U.S.
1, 11, n. 8 (2004).
Finally, the Government suggests that our
holding will frustrate the enforcement of other aggravated felony
provisions, like §1101(a)(43)(C), which refers to a federal
firearms statute that contains an exception for “antique
firearm[s],” 18 U. S. C. §921(a)(3). The Government fears
that a conviction under any state firearms law that lacks such an
exception will be deemed to fail the categorical inquiry. But
Duenas-Alvarez requires that there be “a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of a crime.” 549 U. S., at 193. To defeat the
categorical comparison in this manner, a non- citizen would have to
demonstrate that the State actu- ally prosecutes the relevant
offense in cases involving an- tique firearms. Further, the
Government points to §1101(a)(43)(P), which makes passport fraud an
aggravated felony, except when the noncitizen shows he committed
the offense to assist an immediate family member. But that
exception is provided in the INA itself. As we held in
Nijhawan, a circumstance-specific inquiry would apply to
that provision, so it is not comparable. 557 U. S., at
37–38.
* * *
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.
Carachuri-Rosendo, 560
U. S., at ___ (slip op., at 9) (quoting
Lopez, 549
U. S., at 53). 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.’ ”
Carachuri-Rosendo, 560
U. S., at ___ (slip op., at 9) (quoting
Lopez, 549
U. S., at 53–54). Nor is it sensible that a state statute that
criminalizes conduct that the CSA treats as a misde- meanor 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. The contrary judgment of the Court
of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.