USCIS Policy Manual-Citizenship and Naturalization policies and procedures


About the Policy Manual
Home | Table of Contents | Updates | INA | 8 CFR | Glossary / Acronyms

USCIS has undertaken a comprehensive review of our adjudication and customer service policies to improve quality, transparency, and efficiency. As a result of this extensive and ongoing review, USCIS has created the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’s immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories. The manual is structured to house several volumes pertaining to different areas of immigration benefits administered by the agency such as citizenship and naturalization, adjustment of status, admissibility, protection and parole, nonimmigrants, refugees, asylees, immigrants, waivers, and travel and employment.

The USCIS Policy Manual is organized into different volumes, parts, and chapters that present policies in a logical and sequential manner. The USCIS Policy Manual provides several user-friendly features and enhancements. These features include up-to-the-minute comprehensive policy updates, an expanded table of contents, and links to related Immigration and Nationality Act (INA) sections, Code of Federal Regulations (CFR), and public use forms. The manual is also equipped with a keyword search function, which will make locating policy and related information faster, easier, and less time consuming. Citations of statutes, regulations, case law, authoritative sources, and other explanatory references appear in footnotes rather than the body of the text. Tables and charts supplement and simplify policy information to facilitate understanding of complex topics and instructions.

The USCIS Policy Manual contains the official policies of USCIS and must be followed by all USCIS officers in the performance of their duties. The Policy Manual does not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.

Table of Contents

Posted in 8 CFR, Citizenship and Naturalization policies and procedures, INA, Naturalization, Naturalization Interview Process, Naturalization N-400, Naturalization N-400 applicant, Naturalization N-400 application, naturalization test., USCIS Policy Manual | Tagged | Leave a comment

CA7 Upholds Denial of Good-Faith Marriage Waiver

CA7 Upholds Denial of Good-Faith Marriage Waiver. The court upheld the denial of the petitioner’s request for a good-faith marriage waiver, finding the removal proceedings were not unfair and that the IJ’s adverse credibility determination was reasonable. (Boadi v. Holder, 2/7/13)

Record contained sufficient evidence to support termination of alien’s lawful permanent resident status and his ultimate removal based on finding that: (1) alien’s marriage to U.S. citizen was sham under circumstances where alien was not living with spouse, and where spouse could not name alien’s biological children or name street where alien lived; and (2) alien was not entitled to good-faith marriage waiver to removal after alien and his U.S. spouse had divorced. Moreover, Ct. rejected alien’s claim that IJ’s brief, 20-day continuance of removability hearing to allow him to obtain counsel deprived him of fair opportunity to present favorable evidence on issue as to whether marriage was sham, and alien’s challenge to IJ’s adverse credibility finding was factual matter that could not be challenged on appeal.

Boadi legally entered the U.S. in 2000 but overstayed and married Bonds, a U.S. citizen, in 2001. He adjusted his status to conditional lawful permanent resident in 2003, 8 U.S.C. 1186a(a)(1). In 2007, Boadi and Bonds sought removal of the “condition” to his permanent resident status, with documentation supporting the authenticity of their marriage. DHS’s interview with the couple revealed that Boadi lived in Ohio and Bonds in Illinois and that Boadi may have lived with his ex-wife, another Ghanian national. Bonds could neither name Boadi’s three children nor the street on which Boadi lived. They gave conflicting answers regarding their respective children’s relationships and who paid the bills. Boadi failed to respond to a letter and DHS terminated his legal status in 2009 and issued a notice to appear. Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status, 8 U.S.C. 1186a(b)(1)(A)(ii), distinct from DHS’s existing allegation of fraud. Boadi unsuccessfully requested a good-faith marriage waiver. Removal proceedings began. The immigration judge made an adverse credibility determination and found Boadi removable under 8 U.S.C. 1227(a)(1)(D)(i). The Board of Immigration Appeals affirmed. The Seventh Circuit denied review.

Download PDF

BOADI v. HOLDER

John K. Asare BOADI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2742.

Argued Jan. 9, 2013. — February 07, 2013 Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

Charley L. Yaniko, Attorney, Zeidan & Associates, LLC, Columbus, OH, for Petitioner.Timothy G. Hayes, Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.

In 2001, John Asare Boadi, a Ghanian national that remained in the United States past his visa’s authorization, obtained conditional permanent resident status by marrying a U.S. citizen. Two years later, he petitioned the Department of Homeland Security (“DHS”) to remove the condition on his status, but the subsequent DHS interview revealed Boadi’s marriage appeared to be a ploy to obtain permanent resident status. DHS initiated removal proceedings, and an immigration judge eventually denied Boadi’s request for a good-faith marriage waiver through which Boadi could have avoided removal if he proved he entered his marriage (which had now ended through divorce) in good faith. Boadi now challenges the nature of that proceeding as well as the immigration judge’s substantive conclusions. For the reasons set forth below, we deny Boadi’s petition for review.

I. Background

A. Factual Background

Boadi legally entered the United States in 2000 but overstayed his thirty-day authorization. He subsequently married Veronica Bonds, a U.S. citizen, in 2001. As a result, he adjusted his status to conditional lawful permanent resident in 2003 pursuant to 8 U.S.C. § 1186a(a)(1) (“an alien spouse ․ shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis”). In 2007, Boadi and Bonds filed a joint petition on U.S. Custom and Immigration Services form I–751 seeking removal of the “condition” to his permanent resident status, and they attached documentation supporting the authenticity of their marriage. See 8 C.F.R. § 216.4(a)(5). DHS’s interview with the couple, however, revealed a number of deficiencies in their application. For instance, they lived apart, Boadi in Ohio and Bonds in Illinois. In fact, DHS discovered that Boadi may have lived with his ex-wife, another Ghanian national that acquired legal status by marrying a U.S. citizen, during his marriage to Bonds. Additionally, Bonds could neither name Boadi’s three biological children nor the street on which Boadi lived. They also gave conflicting answers to the same questions regarding their respective children’s relationships, who paid the bills at Bonds’s home, and the day Boadi arrived for his interview.

After the interview, DHS sent a letter to Boadi expressing its intent to deny the petition. Boadi failed to respond, and DHS terminated his legal status in 2009. DHS subsequently issued a notice to appear on three grounds: (1) obtaining an immigration benefit by fraud or willful misrepresentation, (2) remaining in the United States for a period longer than permitted, and (3) having his conditional lawful permanent resident status terminated.

Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status. 8 U.S.C. § 1186a(b)(1)(A)(ii). This ground was distinct from DHS’s existing allegation of fraud, but either way, Boadi was now removable under 8 U.S.C. § 1227(a)(1)(D)(i). Facing deportation, Boadi requested a good-faith marriage waiver through which the Attorney General or DHS may discretionarily remove the conditional status (i.e., grant full permanent resident status) to an alien who entered into a qualifying marriage in good faith even though it was later terminated. 8 U.S.C. § 1186a(c)(4)(B). DHS eventually denied this request.

B. Procedural Background

Removal proceedings began, and Boadi brought counsel with him to his March 2010 “master calendar” hearing. Boadi conceded removability based on the termination of his conditional lawful resident status, but he opposed the first two grounds. He also requested a transfer to the Cleveland Immigration Court because he still resided in Ohio. DHS opposed this request, and the immigration judge decided to keep the case in Chicago to decide only the issue of removability, reasoning that the evidence of fraud would come from the Chicago DHS agent that interviewed Boadi and Bonds. He continued the case and stated after the next hearing he would “transfer the case to Cleveland.”

A few weeks before Boadi’s next hearing, his counsel withdrew, and Boadi appeared pro se on March 11, 2011. Despite the immigration judge’s previous assurances, he told Boadi this would be his “final” hearing, meaning the court would decide every issue that day, not just removability. In fact, the immigration judge incorrectly asserted that he originally scheduled the hearing “to complete [Boadi’s] case.” Nevertheless, the immigration judge was willing to continue the case for twenty additional days so Boadi, who expressed a desire to obtain new counsel, could consult an attorney. This compromise did not satisfy DHS. Because the agent that investigated Boadi’s marriage was present, DHS requested that the court take her testimony. The immigration judge acceded. Boadi was permitted to cross-examine the witness, but he abandoned his attempt after one question.

Before adjourning, the immigration judge recognized the difficult situation Boadi faced without counsel. He further explained that he asked the government to submit the I–751 application (for the good-faith marriage waiver, not the original joint submission with Bonds), which contained various documents, and he twice asked Boadi whether there was any evidence he wanted the immigration judge to consider, reminding him he could bring additional material to the next hearing.

On March 31, Boadi had what would turn out to be his final hearing. He again appeared pro se. The immigration judge examined Boadi, who attempted to account for the discrepancies in the DHS investigation. He stated he moved to Chicago in November 2001 to marry Bonds before he started at an Ohio nursing school in 2003. He visited Bonds, who later moved to Decatur, Illinois, on the weekends. Boadi also denied living with his ex-wife. The confusion stemmed, Boadi testified, from his children’s use of his first wife’s address. Boadi said the children received letters with his name on them; that is why it appears that he received mail there. Boadi did admit he used his ex-wife’s address for his driver’s license but only because he could not use the friend’s address where he actually lived. As for the conflicts between his and Bonds’s answers, Boadi explained Bonds forgot his children’s names because it had been a while since she saw them. Finally, Boadi provided letters from friends supporting the bona fides of his marriage, but the immigration judge noted that some of this information conflicted with Boadi’s testimony; namely, that the friends stated Boadi and Bonds were happily married during a period that Boadi testified they were separated.

Ultimately, the immigration judge did not believe Boadi’s account. He made an adverse credibility determination and issued an oral decision finding Boadi was removable under 8 U.S.C. § 1227(a)(1)(D)(i) because the government terminated his conditional status.1 The immigration judge also found Boadi failed to meet his burden for the good-faith marriage waiver under 8 U.S.C. § 1186a(c)(4)(B), his only application for relief. The immigration judge found the discrepancies produced by the DHS investigation damaging, and Boadi’s efforts to compensate for them unpersuasive. Boadi appealed through counsel to the Board of Immigration Appeals, raising the same claims he now raises to this Court and also challenging the immigration judge’s decision as clearly erroneous. The Board affirmed, and Boadi now petitions this Court for review.

II. Discussion

Congress limits our ability to review “any ․ decision ․ of the Attorney General or Secretary of Homeland Security the authority for which is specified ․ to be in the[ir] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). The good-faith marriage waiver, through which Boadi seeks relief, is such a section. 8 U.S.C. § 1186a(c)(4) (“The Secretary of Homeland Security, in the Attorney General’s discretion, may remove the conditional basis of the permanent resident status”). Section 1252(a)(2)(D) restores jurisdiction for colorable legal and constitutional claims, which we review de novo.

Boadi raises four issues on appeal, two of which are legal and two of which are largely factual despite Boadi’s efforts to couch them otherwise. We examine the legal claims first: that the manner in which the immigration judge conducted his proceedings was “fundamentally unfair” and that the judge “failed to identify” the evidence admitted into the record. We then turn to Boadi’s claims that the immigration judge erred in making an adverse credibility determination and inappropriately weighed the evidence.

A. Manner of Proceedings

Boadi primarily takes issue with the manner in which the immigration judge conducted the proceedings. Specifically, Boadi argues that when the immigration judge continued the case after Boadi’s initial master calendar hearing, he indicated he would decide the issue of removability, then transfer the case to Cleveland to determine applications for relief. At the second hearing, however, the immigration judge told Boadi it was his “final hearing.” He did continue the case for twenty days so Boadi could secure counsel, but he also granted DHS’s request to take testimony from its witness. In essence, Boadi argues that he was willing to contest removability pro se but not applications for relief. The immigration judge’s switch, Boadi argues, had two consequences: (1) he did not have a meaningful opportunity to cross-examine the DHS witness or present other evidence, and (2) the immigration judge deprived him of an opportunity to set forth “any and all applications for relief.”2 He contends these consequences violated his rights under 8 U.S.C. § 1229a(b)(4)(B),3 which provides the “alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.”

Preliminarily, even if Boadi believed that the hearing would only concern removability, it is difficult to see how the proceeding surprised him. One contested ground of removability was 8 U.S.C. § 1227(a)(1)(A) (permitting deportation of inadmissible aliens) because he violated 8 U.S.C. § 1182(a)(6)(C)(i), which applies to any “alien who, by fraud or willfully misrepresenting a material fact, ․ has procured[ ] a visa, other documentation, or admission into the United States or other benefit provided under this chapter.” Thus, in proving removability, DHS had to prove Boadi made a misrepresentation in securing his conditional permanent resident status. It did so through the live testimony of the DHS agent that investigated Boadi’s marriage to Bonds. Notwithstanding, Boadi was still not deprived of an opportunity to crossexamine the witness. For one, the immigration judge offered him the opportunity to do so at the hearing, which Boadi declined. But more importantly, if Boadi thought this proved inadequate, he could have recalled the witness (or presented new evidence) at the continued hearing twenty days later, either personally or through counsel. He chose not to.

Next, Boadi’s conclusory assertion that the immigration judge deprived him of an opportunity to “set forth any and all applications for relief” lacks merit. First, Boadi does not explain why he could not do so during the twenty-day continuance he did receive from the immigration judge nor does he explain why he could not ask for an additional continuance at that hearing to do so. In fact, at no point during the entire proceeding has Boadi suggested there is another application for relief.

This all leads to the glaring absence of prejudice in Boadi’s case. See Delgado v. Holder, 674 F.3d 759, 769 (7th Cir.2012) (“Even if Daisy’s testimony was inappropriately excluded, Delgado has not shown that he was prejudiced by this exclusion.”); Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir.2007) (“To warrant a new immigration hearing ․ an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings.”). Boadi might have preferred the chance to present a case in Cleveland with more time, but even with counsel representing him on appeal he fails to offer a single way in which the manner of the proceeding altered the outcome. It is not enough to suggest that cross-examination might have gone differently or that an attorney (assuming Ohio counsel was available) would have presented different evidence. Maybe a better cross-examination or different evidence would have exposed a weakness in the DHS investigation. But to succeed on appeal, Boadi must point to that alleged weakness and explain how it affected his case. When asked at oral argument what evidence a lawyer would have produced, Boadi’s counsel cryptically alluded to documents in the “government’s files” without explaining what this evidence was or why it remains unavailable to him. The most specific thing he offered was the evidence submitted with his original joint I–751 petition (not the good-faith marriage petition) through which he originally received conditional permanent resident status. But despite being the person that submitted this information, Boadi does not explain what evidence was in the petition, how it supports his claim, or why he no longer has it.

This flaw in Boadi’s argument has more applicability to the application-for-relief claim. To the extent that twenty days was insufficient to discover additional grounds, the immigration judge issued his decision eighteen months ago and Boadi still has not suggested that an actual alternative application for relief exists. We require a showing of prejudice because we want to avoid remanding a case that will inevitably reach the same result. Boadi provides no suggestion that a new hearing would end differently. In short, it is not enough that the immigration judge’s alleged errors had the potential to prejudice Boadi. Before granting his petition for review, he must show that the procedural irregularities actually prejudiced him. Otherwise, the error is harmless.

B. The Immigration Judge’s Consideration of the Evidence

In his next claim, Boadi essentially argues that the immigration judge “must at least identify” all of the evidence submitted to him “for the purposes of building a record on appeal.” This argument relates to the government’s submission of evidence at his second hearing. Boadi does not contend that this information is not part of the administrative record so we do not see how the immigration judge failed to “build a record on appeal.” Instead, he argues that because the immigration judge did not cite to this material in his oral decision, Boadi does not know how much weight the immigration judge attached to each piece of evidence. Boadi seems to suggest that several of the government’s submissions contained multiple documents, and in discussing these submissions the immigration judge should have indicated precisely what portions were considered and how much weight he attached to each portion. No such requirement exists, however. Boadi even recognizes that the immigration judge does not need to discuss all of the evidence; he need only consider it. And Boadi does not contend that the immigration judge failed to meet this requirement. In light of this concession, we do not see how the immigration judge committed legal error.

Importantly, Boadi once again fails to explain how this alleged error prejudiced him, and we do not see how it could have. Because we lack jurisdiction to review factual claims, a clear articulation of the relative weight of the evidence would make no difference to Boadi’s appeal. The same is true in typical cases that we review for substantial evidence, upholding an immigration judge’s findings “if they are supported by reasonable, substantial, and probative evidence.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). The relative weight does not matter so long as adequate evidence supports the immigration judge’s ultimate conclusion. Accordingly, we find this claim lacks merit.

C. Credibility Determination

Boadi’s challenge to the immigration judge’s credibility finding is a factual challenge, which we cannot review under 8 U.S.C. § 1252(a). This sort of claim challenges the immigration judge’s assessment of the evidence and presents no claim of law. Moreover, section 1186a further limits our review by granting the immigration judge the exclusive power to determine “what evidence is credible.” Boadi, however, tries to frame the issue as legal in two distinct ways.

First, he argues that the immigration judge conflated his determination of whether Boadi was credible with his determination of whether Boadi met his burden of proof. However, Boadi’s characterization of the immigration judge’s opinion is incorrect. The immigration judge merely determined Boadi failed to meet his burden of proof because he was not credible. Boadi’s evidence predominantly consisted of his own testimony and explanations regarding DHS’s investigation; without credibility, there was no evidence in favor of Boadi. And in making this credibility determination, the immigration judge reviewed the entire record and explained his reasoning for the determination. He examined the discrepancies uncovered by the DHS witness and explained how Boadi’s clarifications were unpersuasive.

Second, Boadi argues the immigration judge did not consider the factors in 8 U.S.C. § 1229a(c)(4)(C) in making the credibility determination. This section is permissive—the “immigration judge may base a credibility determination [on various factors].” Thus, the immigration judge was under no obligation, contrary to Boadi’s assertion, to, for instance, consider Boadi’s demeanor, evasiveness, or internal inconsistency. See also id. (noting “there is no presumption of credibility” and permitting the immigration judge to consider “the totality of the circumstances” and the “inherent plausibility of the applicant’s or witness’s account”). Thus, the immigration judge correctly followed the law in determining Boadi was not believable.

D. Weight of the Evidence

Finally, Boadi’s assertion that the immigration judge’s decision was against the manifest weight of the evidence, as the name suggests, requests that we reweigh the immigration judge’s assessment of the evidence—something we cannot do when the application for relief is in the Attorney General’s discretion. 8 U .S.C. § 1252(a). However, Boadi again tries to couch this claim as legal. First, Boadi argues that 8 C.F.R. § 216.5(e)(2)(i)-(iv) required the immigration judge to place more weight on the bills and bank account statements that bore both his and Bonds’s name. That regulation, however, merely lists evidence an applicant “may” submit. It does not require the immigration judge to attach a certain weight to it.

Boadi also argues that the immigration judge focused exclusively on Boadi and Bonds’s conduct after the marriage. Boadi essentially argues that too much emphasis on after-the-marriage conduct runs afoul of the statute’s requirement that the marriage be “entered into” in good faith—i.e., the couple’s intention at the time of marriage. However, conduct after the marriage is certainly relevant to determining Boadi’s intention at the time of his marriage. A bona fide couple’s decision to have children, buy a house together, or introduce one another to the other’s children suggests that they intend to begin a life together. These considerations are not dispositive—a fraudulent marriage could exhibit similar tendencies just like bona fide couples could live apart or speak infrequently. But they are relevant, and an immigration judge is charged with placing the appropriate weight on them, which 8 U.S.C. § 1252(a) prevents us from second guessing.

III. Conclusion

For the foregoing reasons, we Deny Boadi’s petition.

FOOTNOTES

1. Because Boadi was removable under this section, the immigration judge did not reach the issue of removability under sections 1227(a)(1)(A) (obtaining immigration benefit by fraud) or 1227(a)(1)(B) (exceeding the authorization of his visa).

2. Boadi also argues the immigration judge’s conduct violated his rights in a third way—that the Board failed to consider the “implications” of this procedural posture. Boadi does not explain what these implications are beyond having to proceed pro se when the government examined its witness and having twenty days to secure Chicago counsel instead of more time to secure Cleveland counsel, both of which we consider.

3. Boadi initially asserted that these procedural irregularities deprived him of due process under the Fifth Amendment. However, as Boadi recognizes in his reply brief, the good-faith marriage waiver is discretionary. Discretionary waivers (i.e., the waiver of inadmissibility) are not liberty interests and do not implicate the Constitution. See Lagunas–Salgado v. Holder, 584 F.3d 707, 712–13 (7th Cir.2009); Kahn v. Mukasey, 517 F.3d 513, 518 (7th Cir.2008).

FLAUM, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Good-Faith Marriage Waiver | Tagged | Leave a comment

CA7 on In Absentia Orders of Removal

CA7 on In Absentia Orders of Removal: The court set aside the in absentia order of removal, finding that the petitioner was not given an opportunity to present evidence that her case should be reopened because she never received notice of the hearing.

A Lithuanian national, Smykiene entered the U.S. in 1995 on a visitor’s visa. Six months after it expired, she was arrested by Border Patrol officers in New York. The officers gave her an order to show cause why she should not be deported and also told her to provide an address. The Immigration Court sent certified mail to the address that Smykiene with her hearing notice. The Postal Service returned the mail with the notation “Attempted—Not Known.” There was no follow-up. Smykiene did not appear and the immigration judge ordered her deported. A year later she married a man who, two years after that, became a naturalized U.S. citizen. In 2010, when authorities located her, Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The Board of Immigration Appeals affirmed an order of removal. The Seventh Circuit remanded, stating that: “The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer … from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia.”

Download PDF

SMYKIENE v. HOLDER

Elena SMYKIENE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 12–1800, 12–2877.

Argued Jan. 18, 2013. — February 13, 2013 Before POSNER, FLAUM, and SYKES, Circuit Judges.

Y. Judd Azulay, Shannon M. Shepherd, Immigration Attorneys, LLP, Chicago, IL, for Petitioner. Melissa K. Lott, Leslie M. McKay, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Elena Smykiene asks us to set aside the order of the Board of Immigration Appeals affirming an immigration judge’s order that she be removed to Lithuania, and the Board’s subsequent order denying her petition to reconsider its previous one. (We won’t have to discuss the second petition, which challenges the denial of reconsideration and which we hereby dismiss as moot.) Her petition for review presents questions concerning orders of removal in absentia.

A Lithuanian national, Smykiene entered the United States in 1995 on a visitor’s visa. It expired in six months but she remained. Six months after it expired, in April 1996, she was arrested by U.S. Border Patrol officers in upstate New York. She was not jailed, but the arresting officers gave her an order to show cause why she should not be deported and also told her to provide them with her address. She gave them the following address: “4711 St. Joseph Creek Rd., Lisle, IL 60532 (‘Lisle Condo’).” She says this was an apartment house owned or leased by her employer and that she lived there with five other Eastern European women, all of whom, like her, worked as maids. The immigration judge conducted no evidentiary hearing, so the validity of these contentions has not been determined.

On July 22, 1996, the Immigration Court sent by certified mail to the address that Smykiene had given the Border Patrol a notice (called “notice to appear”) that her hearing before the court would be held on December 11. The Postal Service returned the mail to the sender with the notation “Attempted—Not Known,” which means that delivery was attempted but that the addressee was not known at the address to which the letter was delivered. There was no follow-up. December 11 came, Smykiene did not appear, and the immigration judge ordered her deported. (What is now called “removing” was then called “deporting”; in the rest of this opinion we’ll use the current term.)

She says that a year later she married a man who, two years after that, became a naturalized U.S. citizen. So matters stood until November 23, 2010, when immigration officers showed up at her home (she was still living in DuPage County, where Lisle is located, but no longer in Lisle) and told her about the 14–year–old order of removal. A lawyer hired by her filed a motion to reopen the removal proceeding and rescind the removal order on the ground that his client had never received the notice of the removal hearing. The lawyer attached an affidavit in which Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The affidavit, together with the notice that the Postal Service returned, is the only actual evidence in the case; we print the affidavit as an appendix to this opinion.

We set to one side issues of prosecutorial discretion—they are not our business, though we can’t forbear to express our puzzlement that the government should be trying to remove a woman who for all they know is married to an American citizen and has lived in this country for 17 years without incident.

An alien cannot be ordered removed from the United States without notice and an opportunity to be heard. Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). The alien can waive his right to a removal hearing; he does so if having received notice of the hearing he decides to skip it; and in that case he can be ordered removed without a hearing—that is, ordered “in absentia ” to be removed. Sabir v. Gonzales, 421 F.3d 456, 458 (7th Cir.2005). But if he never received the notice, there is no waiver and so he is entitled to reopen the removal proceeding to enable him to contest removal. Id. at 458–59. That is, an order of removal in absentia “may be rescinded ․ upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) ․ of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229(a)(1) provides that “written notice ․ shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien).”

As explained in Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004), “the fact that the intended recipient did not actually receive notice does not contradict evidence that delivery was attempted and the notice requirement thus satisfied. But when as in this case the issue is not notice but receipt, because the statute allows an alien ordered removed in an absentia proceeding to reopen the proceeding if he did not receive notice even if the notice that was sent, whether or not it was received, satisfied statutory and constitutional requirements, the intended recipient’s affidavit of nonreceipt is evidence.”

In denying Smykiene’s motion to reopen, the immigration judge confused notice with receipt, as well as overlooking our statement in Joshi that an affidavit of nonreceipt is evidence of nonreceipt. He said that Smykiene had been “properly ․ notified of her hearing,” since the address on the letter returned to sender was the address she’d given the arresting officer, and that instead of showing up at the hearing she had “waited over 14 years before filing a motion to reopen, and did so only after she was arrested ․ and notified she would have to report for deportation.” A person is not “notified” if though notice was sent, it was not received. If Smykiene did not receive the notice she wouldn’t have realized that she’d been ordered removed and so had better move to reopen. In this court the government acknowledges that she didn’t receive the notice.

The immigration judge, in support of his rebuke to her for “wait[ing] over 14 years before filing a motion to reopen,” added that she’d “presumptively received” if not the notice then the actual order of removal, because it had been mailed to her. But if she didn’t receive the notice of the hearing, why would she be expected to have received a subsequent mailing to the same address? (We don’t know what happened to that second letter.)

The immigration judge pointed out that an alien “cannot avoid notice by refusing to accept the notice or by providing an address at which she does not reside.” And that is true; the alien who evades notice can’t reopen the removal hearing. Peralta–Cabrera v. Gonzales, 501 F.3d 837, 843–44 (7th Cir.2007); Sabir v. Gonzales, supra, 421 F.3d at 459; Sanchez v. Holder, 627 F.3d 226, 233–34 (6th Cir.2010). But there is no evidence that Smykiene refused to accept the certified letter notifying her of the removal hearing; had she refused, the Postal Service would if it followed its customary procedures have stamped “Refused” on it rather than “Attempted—Not Known.” Nor is there evidence that she hadn’t given the arresting officers her actual address (though later we’ll see there’s a question of the accuracy of the address she gave) or had otherwise attempted to evade the notice of hearing. Indeed no evidence concerning receipt was presented besides the returned letter and her affidavit, as there was no evidentiary hearing on her motion to reopen.

Smykiene concedes that proper notice was sent; the government agrees that it was not received; so the only question is whether she evaded receipt. Once nonreceipt is attested in an affidavit and there is no conclusive evidence of evasion, the alien is entitled to an evidentiary hearing. Dakaj v. Holder, 580 F.3d 479, 482–83 (7th Cir.2009) (per curiam); Joshi v. Ashcroft, supra, 389 F.3d at 735; Kozak v. Gonzales, 502 F.3d 34, 37–38 (1st Cir.2007); Nibagwire v. Gonzales, 450 F.3d 153, 157–58 (4th Cir.2006); Ghounem v. Ashcroft, 378 F.3d 740, 744–45 (8th Cir.2004); Salta v. INS, 314 F.3d 1076, 1079–80 (9th Cir.2002). We needn’t decide who has the burden of persuasion if an issue of evasion is raised in the evidentiary hearing. The Board said in In re Grijalva, 21 I & N Dec. 27, 37 (BIA 1995), that given the “presumption of effective service” (that is, that mail is usually delivered), the alien “must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.” But this standard, which substitutes a failure, even if completely innocent, to provide a correct address for evasion (in the sense of an intentional or reckless avoidance of receipt) as a ground for waiver of the right to a hearing, is not alluded to in the Board’s or immigration judge’s opinions in the present case; and anyway Smykiene hasn’t been given a hearing at which to present evidence that might meet the standard of the Grijalva case.

The confusion evident in the immigration judge’s opinion carried over to the Board’s decision affirming him. The Board said that “in light of the documentary evidence in the record that the NOH [Notice of Hearing] was sent by certified mail through the U.S. Postal Service and there is proof of attempted delivery and notification of certified mail to the respondent, we agree with the Immigration Judge that the respondent received proper notice of the hearing. Therefore, the respondent has failed to overcome the strong presumption of effective service.” In saying this the Board repeated the immigration judge’s elementary mistake of confusing notice with receipt. Mail is sometimes misdelivered. Nothing is known for certain about the living arrangements in the condo in Lisle, although Smykiene asserts, thus far without contradiction, that several Eastern European maids were living there, she among them. Their English may have been atrocious. They may have been illiterate in English. They may all have been living in the same apartment and Smykiene’s name may not have been on the list of residents posted (one assumes) at the condo’s entrance. It wouldn’t be surprising in these circumstances that she hadn’t received a letter addressed to her.

In parentheses the Board states that an immigration judge “may rescind an order of removal entered in absentia if the alien demonstrates that without her own fault she did not receive notice of her removal hearing” (emphasis in original). This is offered as a paraphrase of our holding in the Sabir case, which we cited earlier. It is an inaccurate paraphrase. The opinion in Sabir, after noting that “it is undisputed that Sabir did not receive the notice of his hearing—the record shows that it was returned to the immigration court marked ‘AttemptedNot Known,’ ” asks: “what if, as the IJ speculated, it was Sabir’s own fault that the notice was not delivered?” Sabir v. Gonzales, supra, 421 F.3d at 459. The speculation was “that Sabir thwarted delivery of the notice by changing the name on his mailbox.” Id. We noted that the change had not been described and that anyway the Postal Service considers the name on a customer’s mailbox irrelevant to delivery. And so the immigration judge had “erred in denying Sabir’s motion to reopen in the face of conclusive proof that Sabir did not receive the notice.” Id. The opinion does not place the burden of negating evasion on the alien, as the Board in the present case interpreted it to do.

The Board also faulted Smykiene for having failed to notify the Immigration Court of her change or changes of address, as required to do so by the order to show cause. But there is no evidence that she changed addresses during the relevant time.

We note one more garble in the Board’s opinion—another misleading parenthetical description of a holding, this one a holding in its Grijalva decision cited earlier. The parenthetical states: “a hearing notice which is sent by certified mail to the alien’s last known address is sufficient to establish by clear, unequivocal, and convincing evidence that the alien received notice of the deportation hearing.” (emphasis added). That is not what the Board said in Grijalva. It said that mailing notice to the alien’s last known address meets the statutory requirement of providing notice; it clearly and correctly distinguished between notice and receipt of notice. In re Grijalva, supra, 21 I & N Dec. at 34, 36. We don’t understand how the Board could have missed this fundamental distinction in the present case.

Compounding confusion gratuitously, Smykiene’s opening brief asserts that she accidentally failed to give the Border Patrol officers her full address. She left out the last four digits of the nine-digit zip code and the number of her apartment. The first error would have been inconsequential, but the second would have increased the probability that she would not receive the notice. It is odd that her lawyer would assert that his client had given the Border Patrol an incomplete address, for that would suggest that the misdelivery of the notice of hearing was her fault after all; and indeed the Justice Department’s lawyer pounced on the assertion to support the argument that it was indeed her fault. But this is to use “fault” in a lay rather than legal sense. The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer to the United States from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia. Suppose Smykiene didn’t understand the order to show cause, and knew only that she had to give the officers her address. Suppose in doing so she didn’t realize that her apartment number was part of the address, or that in her anxiety she simply forgot to include it. Suppose when she didn’t receive any communication from the government after her arrest she assumed that the government had decided not to bother with her; arrests often don’t lead to prosecutions. If these are the circumstances—they are consistent with and to a degree supported by her affidavit—we doubt that the Board would enforce the in absentia removal order, for it is a grave matter to eject a person from the United States without giving her an opportunity to show that she should be allowed to remain, for example because she has married an American citizen. Anyway an appellate brief is not the place to allege new adjudicative facts, as Smykiene’s lawyer pointlessly did.

Whatever standard Smykiene must meet to reopen her case, she has been given no opportunity to meet it, and so the Board’s order must be set aside.

In closing we note our dissatisfaction with the Justice Department’s advocacy in this case. Its brief states that Smykiene “needed to at least minimally try to explain the unsuccessful delivery of her hearing notice, perhaps by providing some direct or circumstantial evidence that the address she gave to INS agents in April 1996 was correct and was still the address at which she could be reached in July 1996 when the hearing notice was mailed to her.” We’ll forgive the cumbrously split infinitive but not that when we pointed out at the oral argument that Smykiene was given no opportunity to explain anything, the Justice Department’s lawyer switched gears and argued that to contest an in absentia order of removal the alien must plead that she did not receive the notice to appear, that she was still at the address to which the notice was mailed, and that she was not trying to thwart delivery, as by giving a false address or simply not opening mail that she knew to be from the Immigration Court (which she might not know, if indeed she was illiterate in English). But failure to plead these things was not the ground of the Board’s decision and has, so far as we have been told, no basis in the Board’s case law. So once again the Justice Department in defending the Board of Immigration Appeals in a court of appeals has violated the Chenery doctrine. See, e.g., Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir.2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir.2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir.2010).

The petition for review is granted and the matter returned to the Board for further proceedings.

Appendix: Elena Smykiene’s Affidavit

I, Elena Smykiene, do hereby swear and affirm the following:

1. On April 20, 1996, I was sleeping in a room in the Budgetel Hotel, in Plattsburgh, New York.

2. At about 6:00 in the morning, I was awakened by a terrible knock on the door. I didn’t know what was happening. I thought maybe it there was a fire.

3. When I opened the door, I saw a tall, white blue eyed man standing there. He said something, but I could not understand him. I do remember him saying “Immigration”. I did not speak or understand English at that time. I spoke only Lithuanian, Polish, Russian, and Ukrainian. It turned out that he was an immigration officer. He spoke very angrily. I understood that something was wrong. He said something else which I did not understand. Finally, he gestured with his hand, and I realized he wanted me to go with him.

4. We took the elevator to the lobby. There I saw several other Lithuanians, and two other immigration officers.

5. The immigration officers were saying something, but I did not understand them. Finally one of the Lithuanians who understood some English said that we had to show our documents, and if we did not we would go to jail.

6. I went to my room escorted by the angry man. I gave him my passport and social security card. He said something else, which I did not understand. We went back to the lobby, and the officers said something else. The Lithuanian man who knew a little English, explained that we had to go the Immigration office.

7. I was driven to the Immigration office. There, they put us all in a separate room.

8. An officer came and starting taking our pictures and fingerprints, like we were criminals. When my turn came, the same angry man called my name. He told me to take a seat next to him. He copied something down from my passport. He asked me something very angrily, but I did not understand him. I was very afraid. He showed me the place where I had to sign. I signed but did not know or understand what I was signing. There were two other officers that I saw. None of the officers spoke to me in a language that I could understand.

9. That same day I called an acquaintance in Chicago. A Lithuanian man helped me buy a bus ticket to Chicago. My acquaintance met me at the bus station in Chicago.

10. I did not receive a notice from the Immigration Court telling me to court to court. I was not told what would happen if I did not go to Court.

11. When I came to Chicago, I got sick and depressed, because the incident frightened me very much. Even now after so many years passing, I cannot forget what happened to me that day in 1996. I was so very frightened.

12. Immigration officers recently came to my home, and told me that I have to report to their office on January 11, 2011.

POSNER, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, In Absentia Orders of Removal | Tagged | Leave a comment

CA7 Holds Fraudulent Use of Social Security Card is CIMT

CA7 Holds Fraudulent Use of Social Security Card is CIMT. The court held that the petitioner was not eligible for cancellation of removal because his prior conviction for using a Social Security card to obtain and maintain employment was a crime involving moral turpitude. (Marin-Rodriguez v. Holder 3/6/13)

Rodriquez entered the U.S. illegally in 1988 and came to the attention of the Department of Homeland Security in 2005, following a misdemeanor DUI conviction. He subsequently pleaded guilty to using a fraudulent social security card, 18 U.S.C. 1546(a). He sought cancellation of removal based on hardship to his children, who are U.S. citizens, but failed to timely comply with the IJ’s request for biometrics. The IJ deemed the petition abandoned and ordered removal, after which Rodriguez provided the information. Following a remand, DHS notified the BIA that Rodriguez had been removed. BIA withdrew the remand. The Seventh Circuit remanded. An IJ then held that Rodriguez was ineligible for cancellation of removal, based on his conviction of a crime of moral turpitude (8 U.S.C. 1229b(b)(1)(C)). The BIA affirmed. The Seventh Circuit dismissed an appeal, holding that fraudulent use of a social security card is a crime involving moral turpitude.

Download PDF

JOSE CONCEPCION MARIN-RODRIGUEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. No. 12-2253.

United States Court of Appeals, Seventh Circuit. Argued January 17, 2013. Decided March 6, 2013.

Before MANION and TINDER, Circuit Judges, and LEE, District Judge.[*]

MANION, Circuit Judge.

Jose Concepcion Marin-Rodriguez, a citizen of Mexico, sought cancellation of removal because his removal would cause hardship for his children, who are United States citizens. Ultimately, an Immigration Judge concluded that Rodriguez was not eligible for cancellation of removal because he had a prior conviction for using a fraudulent Social Security card to obtain and maintain employment that amounted to a crime involving moral turpitude. The Board of Immigration Appeals affirmed, and Rodriguez now petitions this court for review. Because the agency did not err in classifying Rodriguez’s conviction as one for a crime involving moral turpitude, we deny his petition.

I. Factual Background.

Rodriguez illegally entered the United States in 1988. Due to a misdemeanor DUI conviction in 2005, he came to the attention of the Department of Homeland Security (“DHS”), which initiated the process of removing him. During this process, the DHS discovered that he had been using a social security card and number not assigned to him. Rodriguez was charged with and pleaded guilty to using a fraudulent Social Security card to obtain and maintain employment within the United States in violation of 18 U.S.C. § 1546(a). Rodriguez’s guilty plea included the following stipulation:

The parties agree the facts constituting the offense to which the defendant is pleading guilty are as follows:

Between January 1999 and May 2005, the defendant, a citizen of Mexico who is not a citizen or national of the United States, used a social security card, knowing that card was not assigned to him and had been unlawfully obtained, to secure and maintain employment. . . in Wichita, Sedgwiek County, Kansas. Such a document, when authentic, is evidence that a person is authorized to be employed in the United States. The defendant used the fraudulent card for that purpose.

At a subsequent hearing before an Immigration Judge (“IJ”), Rodriguez conceded removability, but sought cancellation of removal. The IJ’s court was located in Chicago, Illinois, while Rodriguez appeared via tele-video from Kansas City, Missouri. Pursuant to the applicable regulations, see 8 C.F.R. § 1003.47(c)-(d), the IJ ordered Rodriguez to submit a set of fingerprints needed to determine his identity and whether he had any disqualifying criminal convictions. Fifteen months later, at his next hearing, Rodriguez still had not complied with the IJ’s order. Thus, another IJ (who was located in Kansas City, Missouri) deemed Rodriguez’s application for cancellation of removal abandoned for his “failure to fulfill the requirements of his biometrics and biographic information check.” The IJ then ordered Rodriguez removed. Rodriguez appealed to the Board of Immigration Appeals (“Board”). While his appeal was pending, Rodriguez submitted a set of fingerprints and moved to remand. The Board deemed his motion untimely and dismissed his appeal. But then Rodriguez moved for reconsideration, and the Board granted this motion and remanded to the Immigration Court.

Before the IJ could rule, however, the DHS asked the Board to reconsider because Rodriguez had already been removed to Mexico. Concluding that it lacked jurisdiction, the Board granted the DHS’ motion and withdrew its remand order. Rodriguez petitioned this court for relief. We held that the Board erred in ruling that it lacked jurisdiction, and we granted Rodriguez’s petition and remanded to the Board. See Marin-Rodriguez v. Holder, 612 F.3d 591, 594-95 (7th Cir. 2010). We observed, however, that our remand might provide little solace for Rodriguez because his section 1546(a) conviction could nevertheless frustrate his efforts to avoid removal. Id. The Board then remanded Rodriguez’s immigration proceedings to the Immigration Court. A new IJ, also located in Kansas City, Missouri, issued a written decision ruling that Rodriguez was ineligible for cancellation of removal because his section 1546(a) conviction was for a crime involving moral turpitude. On appeal, the Board adopted and affirmed the IJ’s decision. Rodriguez now petitions this court for review.[1]

II. Discussion.

On appeal, Rodriguez does not dispute that he would be ineligible for cancellation of removal if he was in fact convicted of a crime involving moral turpitude. See 8 U.S.C. § 1229b(b)(1)(C). But Rodriguez contends that the agency erred in concluding that his conviction for using a fraudulent Social Security card to obtain and maintain employment in violation of section 1546(a) constitutes a crime involving moral turpitude. “Whether an alien’s conviction is properly classified as a crime of moral turpitude is a question of law, so we may review it.” Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(D)). While legal questions are usually reviewed de novo, “[o]ur review of an agency’s determination of whether a particular crime should be classified as a crime of moral turpitude ordinarily is deferential under Chevron . . . .” Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010). But we do not extend Chevron deference to non-precedential Board decisions that do not rely on binding board precedent. Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011). Rather, such Board decisions are entitled only to Skidmore deference. Id. Therefore, because the Board opinion from which Rodriguez appeals is non-precedential, its interpretation of the immigration statutes and regulations is entitled to our respect—but only to the extent that interpretation has the “power to persuade.” Id.; Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).

The immigration statutes use but do not define the phrase “crime involving moral turpitude.” See 8 U.S.C. § 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1227(a)(2)(A)(i)(I). And until 2008, the “absence of an authoritative administrative methodology for resolving moral turpitude inquiries ha[d] resulted in different approaches across the country.” Silva-Trevino, 24 I. & N. Dec. 687, 693 (AG 2008). Thus, the agency would apply the law of the circuit in which an alien’s case arose. Id. Like most circuits, our decisions generally applied the categorical and modified categorical framework adopted by Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), for applying recidivist enhancements in federal criminal prosecutions. See Ali v. Mukasey, 521 F.3d 737, 741, 742 n.† (7th Cir. 2008); Hashish v. Gonzales, 442 F.3d 572, 575-76 (7th Cir. 2006) (collecting cases). Under that approach, the decisionmaker would “determine whether a given crime necessarily involves moral turpitude by examining only the elements of the statute under which the alien was convicted and the record of conviction, not the circumstances surrounding the particular transgression.” Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (internal quotation marks omitted).

Then, in Ali v. Mukasey, we relied upon 8 U.S.C. § 1229a(c)(3)(B) and Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), to hold that “when deciding how to classify convictions under criteria that go beyond the criminal charge— such as whether the crime is one of `moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.” 521 F.3d at 743. Subsequently, in 2008, the Attorney General relied upon Ali in adopting a hierarchical or sequential three-step inquiry to be used by the entire agency in deciding which crimes are morally turpitudinous. See Silva-Trevino, 24 I. & N. Dec. at 696-704. The first and second steps of this inquiry generally coincide with the categorical and modified categorical approaches, respectively. Id. However, the third step permits the IJ to consider any evidence beyond the statute and record of conviction, as in Ali. Id. This third step “is properly applied only where the record of conviction does not itself resolve the issue. . . .” Ahortalejo-Guzman, 25 I. & N. Dec. 465, 468 (BIA 2011). We have determined that Silva-Trevino’s entire framework is entitled to Chevron deference.[2] See Mata-Guerrero, 627 F.3d at 260.[3]

Here, the agency applied the Silva-Trevino framework and concluded, at the first step, that section 1546(a) realistically encompasses some conduct that is not morally turpitudinous. At the second step, however, the agency found that Rodriguez’s record of conviction establishes that his crime involved moral turpitude. That decision was correct.

Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous. See Jordan v. De George, 341 U.S. 223, 232 (1951) (“[T]he decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“Crimes entailing deceit or false statement are within the core of the common-law understanding of `moral turpitude.'”); Padilla, 397 F.3d at 1020-21 (collecting cases). And in Lagunas-Salgado v. Holder, we held that selling fraudulent immigration documents to illegal aliens is morally turpitudinous because it “involves inherently deceptive conduct.” 584 F.3d at 712. Similarly, other circuits have recognized that the use of false immigration documents involves the kind of deceit or fraud that renders a crime morally turpitudinous. See, e.g., Lateef v. Dep’t of Homeland Sec., 592 F.3d 926, 928, 931 (8th Cir. 2010) (holding alien’s conviction for “using an unlawfully obtained social security number” was for a crime involving moral turpitude); Omagah v. Ashcroft, 288 F.3d 254, 261-62 (5th Cir. 2002) (affirming Board ruling that “conspiracy to possess [illegal immigration documents] with intent to use does rise to the level of moral turpitude. . . .”).

Here, Rodriguez’s record of conviction reveals that, as part of his guilty plea, he admitted that he “used a social security card, knowing that card was not assigned to him and had been unlawfully obtained, to secure and maintain employment. . . .” He also admitted that he was aware that an authentic Social Security card could be used as evidence that a person is authorized to work in the United States. By knowingly presenting a false Social Security card to an employer to obtain and maintain unauthorized employment, Rodriguez not only violated the law but also engaged in deceptive conduct.

The deceptive nature of Rodriguez’s conduct is even more explicit than that of the alien’s conduct in Lagunas-Salgado. Here, Rodriguez’s use of a false Social Security card was directly deceptive: he presented the card to an employer with the intent to deceive that employer into thinking that he was legally employable. In contrast, the alien in Lagunas-Salgado was not directly deceiving anyone, but only selling false immigration documents to aliens who could then use them for deceptive purposes. See Lagunas-Salgado, 584 F.3d at 712 (“That the recipients themselves were not deceived does not change the fact that Lagunas-Salgado was selling fraudulent Social Security cards and alien registration cards and placing them out into the world.”). Lagunas-Salgado’s indirectly deceptive conduct was “inherently deceptive” because of the risk that the aliens purchasing the cards would use them deceptively— exactly the sort of deceptive use, as it happens, in which Rodriguez engaged. Consequently, Rodriguez’s directly deceptive use of a false Social Security card to obtain and maintain unauthorized employment a fortiori also “involves inherently deceptive conduct.”[4] And, as we already observed, crimes involving deceit are “within the core of the common-law understanding of `moral turpitude.'” Abdelqadar, 413 F.3d at 671. Therefore, we conclude that the agency did not err in holding that Rodriguez’s conviction was for a crime involving moral turpitude.

Rodriguez’s arguments to the contrary are not persuasive. Certainly, as Rodriguez points out, Board precedent establishes that a conviction for merely possessing an altered immigration document does not constitute a crime involving moral turpitude because an alien “might not have had the intent to use the altered immigration document in his possession unlawfully.” Serna, 20 I. & N. Dec. 579, 586 (BIA 1992). But, as with the alien in Lagunas-Salgado, Rodriguez “was not convicted of merely possessing a false document,” but rather of using that false document in a way that involved deception or the intent to deceive. 584 F.3d at 712. Similarly, Rodriguez’s arguments that his crime was not base, vile, fraudulent, or malum in se are without merit because, as we have explained, the agency did not err in finding that his conduct involved deception, and generally “a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” Padilla, 397 F.3d at 1020 (quoting Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002) (internal quotation marks omitted)); see also Lagunas-Salgado, 584 F.3d at 712; Lateef, 592 F.3d at 928, 931; Omagah, 288 F.3d at 261-62.

Rodriguez also argues that his conviction for using a false Social Security card cannot be for a crime involving moral turpitude unless the underlying conduct was also illegal. Rodriguez contends that he only used the false Social Security card to obtain and maintain employment, which is not illegal.[5] Rodriguez’s position is not tenable in light of the rule that crimes involving deception are morally turpitudinous. Furthermore, the Board decisions cited by Rodriguez—Granados, 16 I. & N. Dec. 726 (BIA 1979) (holding that possessing a concealed weapon is not a crime involving moral turpitude), and S-, 6 I. & N. Dec. 769 (BIA 1955) (holding that possessing instruments of house-breaking is not a crime involving moral turpitude)—are distinguishable because they involved convictions for merely possessing unlawful items. As we explained above, possession is different from use. And, unlike Rodriguez’s use of a false Social Security card, merely possessing weapons or burglary implements does not involve deception.

However, Rodriguez also relies on Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000), wherein the Ninth Circuit looked to the legislative history of 42 U.S.C. § 408(d)(1)[6] to rule that the “use of a false Social Security number to further otherwise legal behavior is not a crime of `moral turpitude’ . . . .” The Ninth Circuit relied, specifically, upon a congressional conference committee report stating that the exemption from prosecution provided by section 408(d)(1) only applies “to those individuals who use a false social security number to engage in otherwise lawful conduct.”[7] H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2653. The report also states that the “Conferees believe that individuals who are provided exemption from prosecution under this proposal should not be considered to have exhibited moral turpitude with respect to the exempted acts for purposes of determinations made by the Immigration and Naturalization Service.” Id.

However, the Fifth, Sixth, and Eighth circuits have all declined to follow Beltran-Tirado. See Guardado-Garcia, 615 F.3d at 902-03; Serrato-Soto v. Holder, 570 F.3d 686, 692 (6th Cir. 2009); Hyder v. Keisler, 506 F.3d 388, 393 (5th Cir. 2007). We now join those circuits in declining to follow a decision that “appears to have expanded a narrow exemption beyond what Congress intended.” Hyder, 506 F.3d at 393. As Rodriguez concedes, section 408(d)(1) and its attendant legislative history do not apply to him. And “[t]he mere fact that Congress chose to exempt a certain class of aliens from prosecution for certain acts does not necessarily mean that those acts do not involve moral turpitude in other contexts.” Id. Furthermore, to adopt the reasoning in Beltran-Tirado would be to depart, at least partly, from our precedent establishing that crimes of deceit and fraud involve moral turpitude. See, e.g., Abdelqadar, 413 F.3d at 671; Padilla, 397 F.3d at 1020-21. We agree with the Fifth and Sixth circuits that such a departure from our precedent would not be appropriate. See Serrato-Soto, 570 F.3d at 692 (“And in declining to follow Beltran-Tirado, we do not disturb established Sixth Circuit precedent finding crimes of fraud or dishonesty within the class of crimes involving moral turpitude.”); Hyder, 506 F.3d at 393.

III. Conclusion.

Because the agency correctly determined that Jose Concepcion Marin-Rodriguez’s prior conviction for using a fraudulent Social Security card to obtain and maintain employment was for a crime involving moral turpitude, we DENY the petition for review.

[*] Honorable John Z. Lee, of the Northern District of Illinois, sitting by designation.

[1] Because Rodriguez and the conclusion of his immigration proceedings were located in Missouri, the DHS observes in its brief that the Eighth Circuit, rather than our circuit, is the correct venue for this case. However, the agency expressly waives any challenge to venue.

[2] In his brief, Rodriguez questions whether the third step of the Silva-Trevino framework permits as broad a consideration of additional evidence as permitted under the standard articulated in Ali. Regardless, as discussed below, the agency resolved Rodriguez’s case at the second step, and he was given an opportunity to present any additional evidence he wished. Rodriguez also expresses doubts about the continued vitality of pre-Silva-Trevino decisions that held that convictions under section 1546 for conduct involving deceit or misuse of official documents were for crimes involving moral turpitude. We need not address this quandary because, as we discuss below, Rodriguez’s petition can be disposed of based on our decision in Lagunas-Salgado, 584 F.3d at 712, which post-dates Silva-Trevino.

[3] A number of circuits have rejected the third step of the Silva-Trevino framework. See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012); Fajardo v. Att’y Gen., 659 F.3d 1303, 1310 (11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 482 (3d Cir. 2009); see also Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law.”). However, as discussed below, the agency resolved Rodriguez’s case at the second step (which is generally consistent with the modified categorical approach).

[4] Because Rodriguez’s conduct was inherently deceptive, Lagunas-Salgado disposes of Rodriguez’s contention that it is possible that he did not actually deceive his employer when he presented his false Social Security card. His use of a false Social Security card to obtain and maintain unauthorized employment evidences an intent to deceive his employer regardless of whether the employer was actually deceived. Cf. Omagah, 288 F.3d at 261. In fact, Rodriguez carried the burden of establishing his eligibility for cancellation, see 8 C.F.R. § 1240.8(d), yet he failed to offer any evidence that his employer was not deceived or that he did not intend to deceive his employer when he used the false Social Security card.

[5] Rodriguez is correct that federal law does not impose criminal penalties on illegal aliens merely because they work in the United States. See Arizona v. United States, 132 S. Ct. 2492, 2495 (2012). But that federal law imposes civil penalties on such conduct when detected, and criminal as well as civil penalties on employers who hire illegal aliens, demonstrates that such conduct is far from innocent or praiseworthy—even if ubiquitous.

[6] Subsequently recodified at 42 U.S.C. § 408(e).

[7] Rodriguez cites this report in his brief; but only for the proposition that a crime cannot be morally turpitudinous if it is not malum in se—an argument that we have addressed above and need not belabor here.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Cancellation of Removal, CIMT, Crime involving moral turpitude, Fraudulent Use of Social Security Card | Tagged | Leave a comment

Moncrieffe v. Holder, small amount of marijuana is not an aggravated felony

Moncrieffe, a Jamaican citizen legally in the U.S., was found with 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. Under the Immigration and Nationality Act, a noncitizen convicted of an “aggravated felony” is deportable, 8 U.S.C. 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony (by more than one year’s imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. 841(a), punishable by up to five years’ imprisonment.

An Immigration Judge ordered Moncrieffe removed. The Board of Immigration Appeals affirmed. The Fifth Circuit denied a petition for review, rejecting reliance on section 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration. The Supreme Court reversed and remanded. If a noncitizen’s conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

The Court employed the “categorical approach,” examining what the state conviction necessarily involved and not the facts underlying the case, and presuming that the conviction involved the least of the acts criminalized. Conviction under Georgia’s statute, alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court rejected an argument that section 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The government’s proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration is inconsistent with the INA’s text and the categorical approach and would burden immigration courts and the noncitizens involved. Escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal.

https://mikebakerlaw.com/blog/–skip-columns=guidwp-content/uploads/2013/04/Moncrieffe-v.-Holder.pdf

SUPREME COURT OF THE UNITED STATES

MONCRIEFFE v. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 11–702. Argued October 10, 2012—Decided April 23, 2013

Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is not only deportable, 8 U. S. C.§1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” §1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year’s imprisonment, see 18 U. S. C. §§924(c)(2), 3559(a)(5). A conviction under state law “constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U. S. 47, 60. Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C.§841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D).An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, rejecting his reliance on §841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, §841(b)(1)(D), provides the default punishment for his offense.

Held: 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, it is not an aggravated felony under the INA. Pp. 4–22.

(a) Under the categorical approach generally employed to determine whether a state offense is comparable to an offense listed in theINA, see, e.g., Nijhawan v. Holder, 557 U. S. 29, 33–38, the noncitizen’s actual conduct is irrelevant. Instead “the state statute definingthe crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v. Duenas-Alvarez, 549 U. S. 183, 186. The state offense is a categorical match only if a conviction of that offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U. S. 13, 24. Because this Court examines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U. S. 133, 137. Pp. 4–6.

(b) The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. Thus, 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. Possession of marijuana with intent to distribute is clearly a federal crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U. S. C. §841(b)(1)(D) provides that, with certain exceptions, a violation of the marijuana distribution statute is punishable by “a term of imprisonment of not more than 5 years.” However, one of those exceptions, §841(b)(4), provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony orthe CSA misdemeanor. Thus, the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Pp. 6–9.

(c) The Government’s contrary arguments are unpersuasive. The Government contends that §841(b)(4) is irrelevant because it is merely a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri-Rosendo v. Holder, 560 U. S. ___, which recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it maybe necessary to take account of federal sentencing factors too. The Government also asserts that any marijuana distribution conviction is presumptively a felony, but the CSA makes neither the felony nor the misdemeanor provision the default. The Government’s approach would lead to the absurd result that a conviction under a statute that punishes misdemeanor conduct only, such as §841(b)(4) itself, would nevertheless be a categorical aggravated felony.

The Government’s proposed remedy for this anomaly—that noncitizens 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—is inconsistent with both the INA’s text and the categorical approach.The Government’s procedure would require the Nation’s overburdened immigration courts to conduct precisely the sort of post hoc investigation into the facts of predicate offenses long deemed undesirable, and would require uncounseled noncitizens to locate witnesses years after the fact.

Finally, the Government’s concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment doesnot mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled substances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker. Pp. 9–21. 662 F. 3d 387, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined.THOMAS, J., and ALITO, J., filed dissenting opinions.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

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), 66 Stat.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).

—————— 1In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U. S. C. §1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR§1208.17(a) (2012). These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggravated felony has no effect on CAT eligibility, but will render a noncitizen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U. S. C. §1231(b)(3)(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 gramsof 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 —————— 2The parties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U. S. C. §1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2. 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 towhether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and itsmisdemeanor provision, such as a statute that punishesall 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. —————— 3Compare 662 F. 3d 387 (CA5 2011) (case below), Garcia v. Holder, 638 F. 3d 511 (CA6 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F. 3d 30 (CA1 2008) (same), with Martinez v. Mukasey, 551 F. 3d 113 (CA2 2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F. 3d 377 (CA3 2003) (same). 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 acategorical match with a generic federal offense only if aconviction 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). Second, 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]onviction” 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 —————— 4 Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U. S. C. §1229b(a)(3) (emphasis added). Our analysis is the same in both contexts.

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 marijuana, §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

——————

5In full, 21 U. S. C. §841(a)(1) provides,

“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

“(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .”

6In pertinent part, §§841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V) provide, “Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: makes it a crime to “possess, have under [one’s] control,manufacture, deliver, distribute, dispense, administer,purchase, sell, or possess with intent to distribute marijuana.” 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.
. . . . .

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 5years,” 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.

——————

“[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10kilograms of hashish, or one kilogram of hashish oil, 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, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. . . .

. . . . .

“(4) 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 provided in section 844 of this title and section 3607 of title 18.” 7Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of possession with intent to distribute that drug.” Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for Petitioner 6, n. 2; Brief for Respondent 8, n. 5.

The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts from deportable controlled substances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U. S. C. §1227(a)(2)(B)(i). The meaning of “small amount” is not at issue in this case, so we need not, and do not, define the term.

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: Section841(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, inpractice, 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

—————— 8 JUSTICE ALITO states that the statute “obviously” requires examination of whether “conduct associated with the state offense . . . would have supported a qualifying conviction under the federal CSA.” Post, at 3 (dissenting opinion) (emphasis added); see also post, at 8. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on conditional perfect formulations. See also, e.g., Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 16) (criticizing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment” (emphasis altered)).Instead, as we have explained, supra, at 10–11, our holding depended upon the fact that Carachuri-Rosendo’s conviction did not establish the fact necessary to distinguish between misdemeanor and felony punishment under the CSA. The same is true here.

Because of these differences, we made clear in Carachuri-Rosendo that, for purposes of the INA, a generic federal 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., at3) (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, 102 Stat. 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.

—————— 9The Government also cites 21 U. S. C. §885(a)(1), which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assuming §841(b)(4) is such an “exception,” §885(a)(1) applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA.

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 fact finding 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 fact finding 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 mini trials 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 mini trials 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 mini trials 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.

10In addition to New York, it appears that 13 other States have separate offenses for §841(b)(4) conduct. See Cal. Health & Safety CodeAnn. §11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. §18–18–406(5)(2012); Fla. Stat. §893.13(2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, §§550/3,550/4, 550/6 (West 2010); Iowa Code §124.410 (2009); Minn. Stat.§152.027(4)(a) (2010); N. M. Stat. Ann. §30–31–22(E) (Supp. 2011); Ohio Rev. Code Ann. §2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore. Rev. Stat. §475.860(3) (2011); Pa. Stat. Ann., Tit. 35, §780–113(a)(31)(Purdon Supp. 2012); S. D. Codified Laws §22–42–7 (Supp. 2012); Tex.Health & Safety Code Ann. §481.120(b)(1) (West 2010); W. Va. CodeAnn. §60A–4–402(c) (Lexis 2010).

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 marijuana. 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 adjudicated 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 under inclusive 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 under inclusiveness 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).

—————— 11Similarly, JUSTICE ALITO’s dissent suggests that he disagrees withthe first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for committing the same criminal conduct” might suffer different collateral consequences depending upon how those States define their statutes of conviction. Post, at 9. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defendant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uni- form” federal definition of the generic offense, and some will not. Taylor v. United States, 495 U. S. 575, 590 (1990). Whatever disparity this may create as between defendants whose real-world conduct was the same, it ensures that all defendants whose convictions establish the same facts will be treated consistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See id., at 599–602.

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 actually prosecutes the relevant offense in cases involving antique 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 tothat 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 ‘common sense 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. 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.

THOMAS, J., dissenting

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 THOMAS, dissenting.

A plain reading of 18 U. S. C. §924(c)(2) identifies two requirements that must be satisfied for a state offense to qualify as a “felony punishable under the Controlled Substances Act [(CSA)].” “First, the offense must be a felony; second, the offense must be capable of punishment under the [CSA].” Lopez v. Gonzales, 549 U. S. 47, 61 (2006) (THOMAS, J., dissenting). Moncrieffe’s offense of possession of marijuana with intent to distribute satisfies both elements. No one disputes that Georgia punishes Moncrieffe’s offense as a felony. See Ga. Code Ann. §16–13–30(j)(2) (Supp. 2012). (“Except as otherwise provided in subsection (c) of Code Section 16–13–31 or in Code Section 16–13–2, any person who violates this subsection shall be guilty of a felony and, upon conviction thereof,shall be punished by imprisonment for not less than one year nor more than ten years”).1 And, the offense is “pun

—————— 1Section 16–13–31(c) (Supp. 2012) increases the punishment for trafficking in marijuana, while §16–13–2(b) (2011) decreases the punishment for simple possession of 1 ounce or less of marijuana. Neither provision is applicable to Moncrieffe’s offense of possession of marijuana with intent to distribute. The Court correctly points out that Moncrieffe was sentenced pursuant to §16–13–2(a) because he was a first-time offender. Ante, at 3. That provision does not alter the felony status of the offense. Rather, it is able under the [CSA],” 18 U. S. C. §924(c)(2), because it involved “possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance,” 21 U. S. C.§841(a)(1). Accordingly, Moncrieffe’s offense is a “drug trafficking crime,” 18 U. S. C. §924(c)(2), which constitutes an “aggravated felony” under the Immigration and Nationality Act (INA), 8 U. S. C. §1101(a)(43)(B).2

THOMAS, J., dissenting

The Court rejected the plain meaning of 18 U. S. C.§924(c)(2) in Lopez. 549 U. S., at 50. There, the defendant was convicted of a state felony, but his offense would have been a misdemeanor under the CSA. Id., at 53. The Court held that the offense did not constitute a “‘felony punishable under the [CSA]’” because it was not “punishable as a felony under that federal law.” Id., at 60 (quoting §924(c)(2); emphasis added). I dissented in Lopez and warned that an inquiry into whether a state offense would constitute a felony in a hypothetical federal prosecution would cause “significant inconsistencies.” Id., at 63. I explained that one such inconsistency would arise if an alien defendant never convicted of an actual state felony were subject to deportation based on a hypothetical federal prosecution. Id., at 67.

This precise issue arose in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010). Instead of following the logic of Lopez, however, the Court contorted the law to avoid the harsh result compelled by that decision. In Carachuri-Rosendo, the defendant was convicted of a crime that the State categorized as a misdemeanor, but his offense would have been a felony under the CSA because he had a prior conviction. 560 U. S., at ___ (slip op., at ___). The Court held that the offense did not constitute an “aggravated felony” because the state prosecutor had not charged the existence of a prior conviction and, thus, the defendant was not “actually convicted of a crime that is itself punishable as a felony under federal law.” Id., at ___ (slip op., at17). Concurring in the judgment, I explained that the Court’s decision was inconsistent with Lopez because the defendant’s conduct was punishable as a felony under theC SA, but that Lopez was wrongly decided and that a proper reading of §924(c)(2) supported the Court’s result.560 U. S., at ___ (slip op., at 1). Carachuri-Rosendo’s crime of conviction was a state-law misdemeanor and, as a result, it did not qualify as a “felony punishable under the[CSA].” See ibid.

—————— gives courts discretion to impose probation instead of imprisonment and to do so without entering a conviction. As the majority recognizes, petitioner has waived any argument that he was not convicted for purposes of the Immigration and Nationality Act. Ante, at 3, n. 2. 2See 8 U. S. C. §1227(a)(2)(A)(iii) (providing that aliens convicted of an “aggravated felony” after admission are deportable); §1229b(a)(3)(providing that aliens convicted of an “aggravated felony” are ineligible for cancellation of removal); §1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in [18 U. S. C. §924(c)])”); 18 U. S. C.§924(c)(2) (defining “drug trafficking crime” as “any felony punishable under the [CSA]”).

I declined to apply Lopez in Carachuri-Rosendo, and I am unwilling to apply it here. Indeed, the Court itself declined to follow the logic of Lopez to its natural end in Carachuri-Rosendo. And, now the majority’s ill-advised approach once again leads to an anomalous result. It is undisputed that, for federal sentencing purposes, Moncrieffe’s offense would constitute a federal felony unless he could prove that he distributed only a small amount of marijuana for no remuneration. Cf. United States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (Sotomayor, J.) (agreeing with the Government that 21 U. S. C. §841(b)(4) is a mitigating exception to the “default provision” under §841(b)(1)(D) and that it need not negate the §841(b)(4) factors to support a sentence under §841(b)(1)(D)). But, the Court holds that, for purposes of the INA, Moncrieffe’s offense would necessarily correspond to a federal misdemeanor, regardless of whether he could in fact prove that he distributed only a small amount of marijuana for no remuneration. Ante, at 11 (asserting that neither §841(b)(1)(D) nor §841(b)(4) is the “default”provision). The Court’s decision, thus, has the effect of treating a substantial number of state felonies as federal misdemeanors, even when they would result in federal felony convictions.

The majority notes that “[t]his is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as . . . an ‘aggravated felony.’ ” Ante, at 20–21. The Court has brought this upon itself. The only principle uniting Lopez, Carachuri-Rosendo, and the decision today appears to be that the Government consistently loses. If the Court continues to disregard the plain meaning of §924(c)(2), I expect that these types of cases will endlessly—and needlessly—recur.

I respectfully dissent.

ALITO, J., dissenting

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 ALITO, dissenting.

The Court’s decision in this case is not supported by the language of the Immigration and Nationality Act (INA) or by this Court’s precedents, and it leads to results that Congress clearly did not intend.

Under the INA, aliens1 who are convicted of certain offenses may be removed from this country, 8 U. S. C.§1227(a)(2) (2006 ed. and Supp. V), but in many instances, the Attorney General (acting through the Board of Immigration Appeals (BIA)) has the discretion to cancel removal, §§1229b(a), (b). Aliens convicted of especially serious crimes, however, are ineligible for cancellation of removal. §1229b(a)(3) (2006 ed.). Among the serious crimes that carry this consequence is “illicit trafficking in a controlled substance.” §1101(a)(43)(B).

Under the Court’s holding today, however, drug traffickers in about half the States are granted a dispensation.In those States, even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is —————— ` country. Large-scale marijuana distribution is a major source of income for some of the world’s most dangerous drug cartels, Dept. of Justice, National Drug Intelligence Center, National Drug Threat Assessment 2, 7 (2011), but the Court now holds that an alien convicted of participating in such activity may petition to remain in this country.

1“Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22)(defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

The Court’s decision also means that the consequences of a conviction for illegal possession with intent to distribute will vary radically depending on the State in which the case is prosecuted. Consider, for example, an alien who is arrested near the Georgia-Florida border in possession of a large supply of marijuana. Under the Court’s holding, ifthe alien is prosecuted and convicted in Georgia for possession with intent to distribute, he is eligible for cancellation of removal. But if instead he is caught on the Florida side of the line and is convicted in a Florida court—where possession with intent to distribute a small amount of marijuana for no remuneration is covered by a separate statutory provision, compare Fla. Stat. §893.13(3) (2010) with §893.13(1)(a)(2)—the alien is likely to be ineligible. Can this be what Congress intended?

I Certainly the text of the INA does not support such a result. In analyzing the relevant INA provisions, the starting point is 8 U. S. C. §1229b(a)(3), which provides that a lawful permanent resident alien subject to removal may apply for discretionary cancellation of removal if he has not been convicted of any “aggravated felony.” The term “aggravated felony” encompasses “illicit tracking in a controlled substance . . . including a drug trafficking crime (as defined in [18 U. S. C. §924(c)]).” 8 U. S. C. §1101(a)(43)(B). And this latter provision defines a “drug trafficking crime” to include “any felony punishable under the Controlled Substances Act (21 U. S. C. 801 et seq.).”

18 U. S. C. §924(c)(2). Thus “any felony punishable under the [CSA]” is an “aggravated felony.”

Where an alien has a prior federal conviction, it is a straightforward matter to determine whether the conviction was for a “felony punishable under the [CSA].” But 8 U. S. C. §1101(a)(43) introduces a complication. That provision states that the statutory definition of “aggravated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” (Emphasis added.) As noted, the statutory definition of “aggravated felony” includes a “felony punishable under the[CSA],” and therefore §1101(a)(43)(B) makes it necessary to determine what is meant by a state “offense” that is a“felony punishable under the [CSA].”

What §1101(a)(43) obviously contemplates is that the BIA or a court will identify conduct associated with the state offense and then determine whether that conduct would have supported a qualifying conviction under the federal CSA.2 Identifying and evaluating this relevant conduct is the question that confounds the Court’s analysis. Before turning to that question, however, some preliminary principles should be established.

—————— 2The Court’s disagreement with this proposition, ante at 12, n. 8, is difficult to understand. If, as 8 U. S. C. §1101(a)(43) quite plainly suggests and the Court has held, a state conviction can qualify as an“aggravated felony,” we must determine what is meant by a state “offense” that is a “felony punishable under the [CSA].” There is no way to do this other than by identifying a set of relevant conduct and asking whether, based on that conduct, the alien could have been convicted of a felony if prosecuted under the CSA in federal court. In rejecting what it referred to as a “hypothetical approach,” the Carachuri-Rosendo Court was addressing an entirely different question, specifically, which set of conduct is relevant. Carachuri-Rosendo v. Holder, 560 U. S. ___, ___–___ (2010) (slip op., at 8, 15–17). We held that the relevant set of conduct consisted of that which was in fact charged and proved in the state-court proceeding, not the set of conduct that could have been proved in a hypothetical federal proceeding.

In Lopez v. Gonzales, 549 U. S. 47, 50 (2006), we held that felony status is controlled by federal, not state, law.As a result, once the relevant conduct is identified, it must be determined whether proof of that conduct would support a felony conviction under the CSA. The federal definition of a felony is a crime punishable by imprisonment for more than one year. 18 U. S. C. §§3559(a)(1)–(5). Consequently, if the proof of the relevant conduct would support a conviction under the CSA for which the maximum term of imprisonment is more than one year, the state conviction qualifies as a conviction for an “aggravated felony.”

II This brings us to the central question presented in this case: how to determine and evaluate the conduct that constitutes the state “offense.” One possibility is that actual conduct is irrelevant, and that only the elements of the state crime for which the alien was convicted matter. We have called this the “categorical approach,” Taylor v. United States, 495 U. S. 575, 600 (1990), and we have generally used this approach in determining whether a state conviction falls within a federal definition of a crime, see id., at 600–601 (“Section 924(e)(2)(B)(i) defines ‘violent felony’ as any crime punishable by imprisonment for more than a year that ‘has as an element’—not any crime that, in a particular case, involves—the use or threat of force.Read in this context, the phrase ‘is burglary’ in §924(e)(2)(B)(ii) most likely refers to the elements of the statute of conviction, not to the facts of each defendant’s conduct”). But, as will be discussed below, we have also departed in important ways from a pure categorical approach.The Court’s opinion in this case conveys the impression that its analysis is based on the categorical approach, but that is simply not so. On the contrary, a pure categorical approach leads very quickly to the conclusion that petitioner’s Georgia conviction was a conviction for an “aggravated felony.”

The elements of the Georgia offense were as follows:knowledge, possession of marijuana, and the intent to distribute it. Ga. Code Ann. §16–13–30(j)(1) (2007); Jack-son v. State, 295 Ga. App. 427, 435, n. 28, 671 S. E. 2d 902,909, n. 28 (2009). Proof of those elements would be sufficient to support a conviction under 21 U. S. C. §841(a), and the maximum punishment for that offense is imprisonment for up to five years, §841(b)(1)(D) (2006 ed., Supp. V), more than enough to qualify for felony treatment. Thus, under a pure categorical approach, petitioner’s Georgia conviction would qualify as a conviction for an“aggravated felony” and would render him ineligible for cancellation of removal.

The Court departs from this analysis because §841(b)(4) provides a means by which a defendant convicted of violating §841(a) (2006 ed.) may lower the maximum term of imprisonment to no more than one year. That provision states that “any person who violates [§841(a)] by distributing a small amount of marihuana for no remuneration shall be treated as” a defendant convicted of simple possession, and a defendant convicted of that lesser offense faces a maximum punishment of one year’s imprisonment (provided that the defendant does not have a prior simple possession conviction), §844 (2006 ed., Supp. V). Reading this provision together with §841(a), the Court proceeds as if the CSA created a two-tiered possession-with-intent-to distribute offense: a base offense that is punishable as a misdemeanor and a second-tier offense (possession with intent to distribute more than a “small amount” of marijuana or possession with intent to distribute for remuneration) that is punishable as a felony.

If the CSA actually created such a two-tiered offense,the pure categorical approach would lead to the conclusion that petitioner’s Georgia conviction was not for an “aggravated felony.” The elements of the Georgia offense would not suffice to prove the second-tier offense, which would require proof that petitioner possessed more than a “small amount” of marijuana or that he intended to obtain remuneration for its distribution. Instead, proof ofthe elements of the Georgia crime would merely establish a violation of the base offense, which would be a misdemeanor.

The CSA, however, does not contain any such two-tiered provision. And §841(b)(4) does not alter the elements of the §841(a) offense. As the Court notes, every Court of Appeals to consider the question has held that §841(a) isthe default offense and that §841(b)(4) is only a mitigating sentencing guideline, see United States v. Outen, 286 F. 3d 622, 636–639 (CA2 2002) (Sotomayor, J.) (describing §841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F. 3d 666, 670 (CA4 2003) (collecting cases),and the Court does not disagree, ante, at 11–13.

Confirmation of this interpretation is provided by the use of the term “small amount” in §841(b)(4). If §841(b)(4) had been meant to alter the elements of §841(a), Congress surely would not have used such a vague term. Due process requires that the elements of a criminal statute be defined with specificity. Connally v. General Constr. Co., 269 U. S. 385, 393 (1926). Accordingly, it is apparent that§841(b)(4) does not modify the elements of §841(a) but instead constitutes what is in essence a mandatory sentencing guideline. Under this provision, if a defendant is convicted of violating §841(a), the defendant may attempt to prove that he possessed only a “small amount” of marijuana and that he did not intend to obtain remuneration for its distribution. If the defendant succeeds in convincing the sentencing judge, the maximum term of imprisonment is lowered to one year.

In sum, contrary to the impression that the Court’s opinion seeks to convey, the Court’s analysis does not follow the pure categorical approach.

III Nor is the Court’s analysis supported by prior case law.The Court claims that its approach follows from our decision in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010),but that case—unlike the Court’s opinion—faithfully applied the pure categorical approach. In Carachuri-Rosendo, the alien had been convicted in a Texas court for simple possession of a controlled substance. Id., at ___ (slip op., at 6). At the time of that conviction, Carachuri-Rosendo had a prior state conviction for simple possession, but this fact was not charged or proved at his trial and was apparently not taken into account in setting his sentence, which was 10 days in jail. Id., at ___, ___–___ (slip op., at 5–6). Arguing that Carachuri-Rosendo was ineligible for cancellation of removal, the Government maintained that his second simple possession conviction qualified under the INA as a conviction for an “aggravated felony.” Id., at ___ (slip op., at 5). This was so, the Government contended, because, if Carachuri-Rosendo’s second simple-possession prosecution had been held in federal court, he could have been punished by a sentence of up to two years due to his prior simple possession conviction. Id., at ___ (slip op., at 5). This more severe sentence, however, would have required the federal prosecutor to file a formal charge alleging the prior conviction; Carachuri-Rosendo would have been given the opportunity to defend against that charge; and the heightened sentence could not have been imposed unless the court found that the prior conviction had occurred. Id., at ___ (slip op., at 14). Our rejection of the Government’s argument thus represented a straightforward application of the pure categorical approach. The elements of the Texas offense for which Carachuri-Rosendo was convicted were knowledge or intent, possession of a controlled substance without a prescription, and nothing more. Id., at ___ (slip op., at 6);Tex. Health & Safety Code Ann. §§481.117(a), (b) (West 2010). Proof of a prior simple possession conviction was not required, and no such proof appears to have been offered. The maximum penalty that could have been imposed under federal law for simple possession (without proof of a prior simple possession conviction) was one year’s imprisonment. Thus, proof in federal court of the elements of the Texas offense would not have permitted a felony-length sentence, and consequently the state conviction did not qualify as a felony punishable under the CSA.

IV Unsupported by either the categorical approach or our prior cases, the decision of the Court rests instead on the Court’s belief—which I share—that the application of the pure categorical approach in this case would lead to results that Congress surely did not intend.Suppose that an alien who is found to possess two marijuana cigarettes is convicted in a state court for possession with intent to distribute based on evidence that he intended to give one of the cigarettes to a friend. Under the pure categorical approach, this alien would be regarded a shaving committed an “aggravated felony.” But this classification is plainly out of step with the CSA’s assessment of the severity of the alien’s crime because under the CSA the alien could obtain treatment as a misdemeanant by taking advantage of 21 U. S. C. §841(b)(4). For this reason, I agree with the Court that such an alien should not be treated as having committed an “aggravated felony.” In order to avoid this result, however, it is necessary to depart from the categorical approach, and that is what the Court has done. But the particular wayin which the Court has departed has little to recommend it.

To begin, the Court’s approach is analytically confused.As already discussed, the Court treats §841(b)(4) as if it modified the elements of §841(a), when in fact §841(b)(4) does no such thing. And the Court obviously knows this because it does not suggest that §841(b)(4) changes the elements of §841(a) for criminal law purposes.3

In addition, the Court’s approach leads to the strange and disruptive results noted at the beginning of this opinion. As an initial matter, it leads to major drug trafficking crimes in about half the States being excluded from the category of “illicit trafficking in a controlled substance.” Moreover, it leads to significant disparities between equally culpable defendants. We adopted the categorical approach to avoid disparities in our treatment of defendants convicted in different States for committing the same criminal conduct. See Taylor, 495 U. S., at 590–591 (rejecting the view that state law determined the meaning of “burglary” because “[t]hat would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct ‘burglary’”). Yet the Court reintroduces significant disparity into our treatment of drug offenders. All of this can be avoided by candidly acknowledging that the categorical approach is not the be-all and end-all.

—————— 3The Court defends its interpretation of 21 U. S. C. §§841(a), (b)(4) by arguing that Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010), rejected any recourse to a “hypothetical approach” for determining how a criminal prosecution likely would have proceeded, see ante, at 12, and that is true enough. But, as discussed above, see n. 2, supra, just because the categorical approach does not require conjecture as to whether a hypothetical federal prosecutor would be likely to charge and prove a prior conviction does not mean that it also precludes analysis of the structure of the federal criminal statute at hand. Indeed, our categorical-approach cases have done little else. See, e.g., Carachuri-Rosendo, supra, at ___ (slip op., at 14) (discussing procedural protections Carachuri-Rosendo would have enjoyed had he been prosecuted federally); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185, 189–194 (2007) (the term “theft offense” in 8 U. S. C. §1101(a)(43)(G) includes the crime of aiding and abetting a theft offense).

When Congress wishes to make federal law dependent on certain prior state convictions, it faces a difficult task.The INA provisions discussed above confront this problem,and their clear objective is to identify categories of criminal conduct that evidence such a high degree of societal danger that an alien found to have engaged in such conduct should not be allowed to obtain permission to remain in this country. Since the vast majority of crimes are prosecuted in the state courts, Congress naturally looked to state, as well as federal, convictions as a metric for identifying these dangerous aliens.

But state criminal codes vary widely, and some state crimes are defined so broadly that they encompass bothvery serious and much less serious cases. In cases involving such state provisions, a pure categorical approach may frustrate Congress’ objective.

The Court has said that the categorical approach finds support in the term “conviction.” Taylor, supra, at 600; Shepard v. United States, 544 U. S. 13, 19 (2005). But the Court has never held that a pure categorical approach is dictated by the use of that term,4 and I do not think that it is. In ordinary speech, when it is said that a person was convicted of or for doing something, the “something” may include facts that go beyond the bare elements of the relevant criminal offense. For example, it might be said that an art thief was convicted of or for stealing a Rembrandt oil painting even though neither the identity of the artist nor the medium used in the painting are elements of the standard offense of larceny. See 3 W. LaFave, Substantive Criminal Law §19.1(a) (2d ed. 2003).

—————— 4Instead, the Court adopted the categorical approach based on a combination of factors, including judicial efficiency. See Taylor, 495 U. S., at 601 (“[T]he practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was”).

For these reasons, departures from the categorical approach are warranted, and this Court has already sanctioned such departures in several circumstances. See Taylor, supra, at 602 (modified categorical approach); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007) (categorical approach does not exclude state-law convictions unless there is “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”); Nijhawan v. Holder, 557 U. S. 29, 32 (2009) (interpreting an enumerated “aggravated felony” in 8 U. S. C.§1101(a)(43) not to be a generic crime). Consistent with the flexibility that the Court has already recognized, I would hold that the categorical approach is not controlling where the state conviction at issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard and a substantial number that do not. In such situations, it is appropriate to look beyond the elements of the state offense and to rely as well on facts that were admitted in state court or that, taking a realistic view, were clearly proved. Such a look beyond the elements is particularly appropriate in a case like this, which involves a civil proceeding before an expert agency that regularly undertakes factual inquiries far more daunting than any that would be involved here. See, e.g., Negusie v. Holder, 555 U. S. 511 (2009).

Applying this approach in the present case, what we find is that the Georgia statute under which petitioner was convicted broadly encompasses both relatively minor offenses (possession of a small amount of marijuana with the intent to share) and serious crimes (possession with intent to distribute large amounts of marijuana in exchange for millions of dollars of profit). We also find that petitioner had the opportunity before the BIA to show tha this criminal conduct fell into the category of relatively minor offenses carved out by §841(b)(4). Administrative Record 16–26. The BIA takes the entirely sensible view that an alien who is convicted for possession with intent to distribute may show that his conviction was not for an“aggravated felony” by proving that his conduct fell within §841(b)(4). Matter of Castro-Rodriguez, 25 I. & N. Dec. 698, 701–702 (2012). Petitioner, for whatever reason, availed himself only of the opportunity to show that his conviction had involved a small amount of marijuana and did not present evidence—or even contend—that his offense had not involved remuneration. Administrative Record 16–26, 37. As a result, I think we have no alternative but to affirm the decision of the Court of Appeals,which in turn affirmed the BIA.

Posted in Aggravated felony, Cancellation of Removal, Deportation for Drug Crimes, Marijuana Possession, U.S. Supreme Court | Leave a comment