In Moncrieffe v. Holder (No. 11-702) the Supreme Court held today that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief.
Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." The Court applied the categorical approach, and concluded:
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 misdemeanor 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.