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The biggest news out of the Supreme Court this term has to be the death of DOMA. However, in the immigration context there were two other very important decisions that were handed down. 


In Moncrieffe v. Holder, the Court decided that the courts must look to the state statute of conviction and not the underlying facts of the case. If the state statute criminalizes conduct which falls outside of the Controlled Substances Act (CSA), Felony definition, then it is not an Aggravated Felony. Importantly, the Court also held that any ambiguity in what the state statute criminalizes must weigh in favor of the “criminal,” not the government. This case is important not only for what it does to help save some immigrants from the serious consequences of possession charges being treated as Aggravated Felonies, but also for what it does to the way the Immigration Courts have too easily gone beyond the Categorical Approach. 


Last year, the Board of Immigration Appeals decided Matter of Davey, in which they held that where someone has two counts in a conviction, for possession of marijuana and for possession of paraphernalia, where they both relate to the same incident, and also related to possession of less than 30 grams of marijuana, the “petty offense” exemption is available. Previously, multiple counts made someone ineligible for the exemption. Taken together, the negative consequences for immigrants with relatively minor drug related convictions have been significantly reduced. 


We already had a case come up in the Immigration Court where someone was convicted of a possession offense, but because the statute didn’t address this exception in the CSA, he was not deemed to have been convicted of an Aggravated Felony, and was eligible for the relief requested. 


In Descamps v. United States, the Court continued to chip away at the Modified Categorical Approach. The Court decided that where the statute someone is convicted under a statute that has a single, indivisible set of elements the courts may not look beyond that statute to the actual facts of the case to determine the immigration consequences for that conviction. The Court essentially chastised the lower courts for too eagerly going to the Modified Categorical Approach, and under Attorney General Mukasey’s Matter of Silva-Trevino decision, even further. The Court very clearly restated its position that the Modified Categorical Approach is to be used only in a narrow set of cases where it is necessary to determine which crime, among a series of potentials, the conviction is based. 


In Lanferman, the BIA had decided that it could use the Modified Categorical Approach more widely in the immigration context than in the criminal context. It is clear that we still have future fights on our hands on this issue. Because they argue that immigration cases are different, it may be necessary for the Circuit Courts to address the applicability of Descamps in immigration cases if the Immigration Courts don’t follow the Supreme Court’s decision.

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