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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.