Drugs are in the news — and in my recent posts. On November 10, California Gov. Gavin Newsom (D) issued six pardons for aliens convicted of drug-trafficking crimes who are facing removal. Those pardons raise some important issues — including the Supreme Court’s illogical treatment of marijuana trafficking convictions as aggravated felonies, whether the aliens who received pardons are still removable, and whether any or all of the aliens who received pardons are eligible for relief.

Newsom’s Pardons

I previously wrote about three of Newsom’s 22 November 10 pardons (two for voluntary manslaughter and one for second degree murder and attempted second degree murder) in a November 16 post. In addition to those three, the governor also pardoned six other individuals — identified as Ray Aranjo, Efrain Barajas Meraz, Tung Do, Laura Flores, Nicolas Salgado Espinal, and Carlos Vasquez Salazar — for each of whom deportation is “impending”.

Aranjo was convicted in 2005 for possession of marijuana for sale. Barajas Meraz’s conviction came in 2013, for possession of marijuana for sale, planting or cultivating marijuana, and transportation or sale of marijuana. In 2000, Do was convicted of possession or purchase of cocaine base for sale. Flores’s conviction came in 2003, for purchase for sale of an unidentified controlled substance. In Salgado’s case, the crime was possession — again of an unidentified controlled substance — for sale, and the conviction again was handed down in 2003. Vasquez Salazar’s conviction is the oldest — in 1990 — for possession of, transporting, or selling a controlled substance (once more, unidentified).

California State Law on Marijuana

Possession of marijuana (technically “cannabis”) for sale is a violation of section 11359 of the California Health and Safety Code. There are a variety of punishments, but garden-variety possession for sale is a misdemeanor. Planting, cultivating, harvesting, drying, or processing marijuana is a violation of the preceding section, 11358 of the Health and Safety Code. Six or fewer plants gets you a fine (unless you divert water or violate the Fish and Game Code, among other wrinkles); more than six is a misdemeanor, again, with variations.

Section 11360 of the California Health and Safety Code criminalizes transportation for sale, importation into California, sale, furnishing, administration, or the giving away of marijuana, as well as offers and attempts to do any of those acts. If the quantum of pot is 28.5 grams or less (or four grams of concentrated cannabis), the crime is an infraction; otherwise, it is a misdemeanor unless the recipient is under the age of 18 or the offender has priors.

California decriminalized the personal use and possession of marijuana in 2016’s Proposition 64, hence the comparably light punishments (assuming minors aren’t involved or there aren’t special circumstances) for those crimes. The convictions of Aranjo and Barajas Meraz (again, for which they were pardoned) predated the amendment, but they nonetheless received light sentences: probation and 90 days and 270 days in jail, respectively.

California State Law on Other Controlled Substances

Possession for sale or purchase for sale of “controlled substances formerly classified as narcotics” is a violation of section 11351 of the Health and Safety Code, and can net you a sentence of two to four years. Those substances are identified in specific subdivisions of sections 11054 (opiates, opium derivatives, stimulants, depressants, mescaline, peyote, and tetrahydrocannabinols), 11055 (opium and certain other opiates), and 11056 (something called “dronabinol (synthetic) in sesame oil” in an FDA-approved gel tab).

Transportation for sale of those controlled substances is a violation of section 11352 of the California Health and Safety Code, and can get you three to five years (crossing over into a noncontinguous county can get you three to nine years). Possession for sale or purchase for sale of cocaine base (its own separate provision, section 11351.5) carries a sentence of two to four years.

Federal Criminal Law on Trafficking in Controlled Substances

The primary federal law relating to trafficking in controlled substances is 21 U.S.C. § 841, part of the Controlled Substances Act (CSA). That section criminalizes the manufacture, distribution, or dispensing, or possession with intent to manufacture, distribute, or dispense, of a controlled substance, punishable as a felony. It generally does not distinguish between marijuana (technically “marihuana” under federal law) and other controlled substances (all are generally felonies), with one exception: under section 841(b)(4) of the CSA, distribution of a “small amount” of marijuana for no remuneration is a misdemeanor.

That exception goes back to an amendment debated in 1970, the parameters of which were explained in a written statement by then-Sen. Edward Kennedy (D-Mass.) on October 7 that year. Kennedy asserted:

Many youngsters may be in a situation where they are with friends, where they give a marihuana cigarette or a small quantity of marihuana to one or two others — not as professional pushers, not to make a profit, but in a casual and informal way.

In other words, sharing a joint or giving a friend a small baggy of marijuana for free is not a federal felony. That exception, however, has largely swallowed the rule as it relates to removability for many more significant marijuana transactions, as explained below.

Trafficking in a Controlled Substance as an “Aggravated Felony” Under the INA

Section 101(a)(43)(B) of the Immigration and Nationality Act (INA) defines the term “aggravated felony” to include “illicit trafficking in a controlled substance” as defined in the CSA, “including a drug trafficking crime (as defined in section 924(c) of title 18).” Under the latter section, “a ‘drug trafficking crime’ means any felony punishable under the” CSA.

Section 237(a)(2)(A)(iii) of the INA renders removable a lawfully admitted alien who has been convicted of an aggravated felony under section 101(a)(43) of the INA. There is no aggravated felony ground of inadmissibility under section 212 of the INA, but many crimes classified as “aggravated felonies” are also grounds of inadmissibility (including “[c]ontrolled substance traffickers”).

The Limitations of the “Categorical Approach” to Assessing Aggravated Felonies

Most drug crimes are punished at the state level, and therefore to determine whether that state offense is an aggravated felony for purposes of the INA, the court refers (generally, but not exclusively) to the aforementioned section 841 of the CSA. Simply put, if the state drug crime would be punishable as a felony under federal law, it is an aggravated felony that renders a lawful permanent resident or nonimmigrant removable.

To make that determination, the court applies the much-derided “categorical approach”, which I explained in a January 2018 post. Somewhat overly simply, under that analysis the court compares the elements of the state offense to see whether they match the elements of a generic federal definition (in this case under the CSA). If they do (or if the state offense is more restrictive that the generic federal definition), then there is a categorical match, and the crime is an aggravated felony.

“Much-derided” because the focus is not on what the alien actually did — only the minimum acts that are required for the state conviction. The court cannot look far behind the state conviction records to assess what specific provision of state law the alien was convicted of, and many state conviction records are less than clear on this point. Not because state courts are sloppy or lazy, but because judges, juries, and clerks in those courts are usually focused on convictions — not removability.

Moncrieffe v. Holder and Marijuana Convictions Generally

All of which brings me to Sen. Kennedy’s exception. In Moncrieffe v. Holder, the Supreme Court held that a Jamaican national who had been convicted under Georgia law of possession with intent to distribute marijuana had not been convicted of an aggravated felony for purposes of the INA. That law was not as specific with respect to sharing a joint or giving a friend a small amount of marijuana as the CSA is as relates to distribution.

The government had argued (correctly in my opinion) that 841(b)(4) is a “mitigating exception” to the general rule that marijuana distribution is a felony under federal law, and that such a crime is “presumptively” a felony at the federal level under the CSA. Justice Sotomayor, writing for the majority, was having none of it.

She admitted that “the burden is on the defendant [in federal prosecutions} to show that he qualifies for the lesser sentence under §841(b)(4).” Despite this fact, sticking tightly to the language in section 841 generally, the majority concluded that the alien there was not removable on aggravated felony grounds. In dissent, Justice Alito made the implications of that decision clear: “Under the Court’s holding today … drug traffickers in about half the States are granted a dispensation.”

Effect of Moncrieffe on California Marijuana Convictions

Given all of this, why did Gov. Newsom need to issue the two pardons to Aranjo and Barajas Meraz at all?

Under prior iterations (in effect at the time of their convictions), section 11359 was an aggravated felony as defined in section 101(a)(43)(B) of the INA, as the Ninth Circuit held post-Moncrieffe in its 2014 decision in Roman-Suaste v. Holder, and therefore California was not one of the states referenced by Justice Alito. Similarly, in U.S. v. Reveles-Espinosa, the Ninth Circuit held that a conviction under section 11358 is an aggravated felony, as well. Section 11360(b) mirrors (more or less) section 841(b)(4) of the CSA, as the Supreme Court noted in footnote 10 in Moncrieffe.

Effect of Moncrieffe on Other Controlled Substances Convictions

Notwithstanding its breadth, Moncrieffe did not have any effect on drug-trafficking convictions involving other controlled substances, as section 841(b)(4) of the CSA only addresses marijuana.

One issue arises, however, where the state drug schedule and the federal drug schedule do not match up. Some states control drugs that the CSA and its implementing regulations do not. Specifically, the Ninth Circuit has noted: “California law regulates the possession and sale of numerous substances that are not similarly regulated by the CSA.”

With respect to Newsom’s pardons where the controlled substance was not identified, I note that the governor stated that deportation was a “collateral consequence” of the convictions for Flores, Salgado Espinal, and Vasquez Salazar, so I will presume (logically) that the drug involved is listed in the CSA and/or the regulations. Therefore, it appears that each would have otherwise been removable under section 237(a)(2)(A)(iii) of the INA, as an alien convicted of an aggravated felony.

Cocaine base is a schedule II drug by regulation, and the Ninth Circuit has held that section 11351.5 categorically qualifies as a drug trafficking offense under the CSA (in a non-immigration federal sentencing case), so therefore Do appears to have been convicted of an aggravated felony, and was removable on that ground, as well.

Effect of Newsom’s Pardons

Interestingly, the pardons in the six cases do not mean that those aliens are no longer removable. They are simply not removable on aggravated felony grounds.

As I explained in my November 16 post, under section 237(a)(2)(A)(vi) of the INA, the criminal grounds of removal in sections 237(a)(2)(A)(i) (for a crime involving moral turpitude (CIMT)), (ii) (for two CIMTs not arising out of the same course of conduct), (iii) (for an aggravated felony or felonies), and (iv) (for high-speed flight from an immigration checkpoint) do not apply to a conviction if the alien “has been granted a full and unconditional” gubernatorial pardon.

Section 237(a)(2)(B) of the INA renders aliens who have been convicted of “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance” — as defined in the CSA — “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana” deportable.

There is no provision similar to section 237(a)(2)(A)(vi) of the INA limiting removability for drug-related offenses under section 237(a)(2)(B) of the INA, even where a pardon has been issued. Given that fact, and assuming that the drugs involved in each of these six offenses is covered by the CSA, those aliens would still be removable — just not on the aggravated felony ground.

This conclusion is reinforced by the decision of the Board of Immigration Appeals (BIA) in Matter of Suh. The respondent there had been convicted of sexual battery of a minor under Georgia law, and was removable as an alien convicted of an aggravated felony as defined in section 101(a)(43)(A) of the INA (“sexual abuse of a minor”).

The respondent subsequently received a pardon for that conviction. The BIA held, however, that he was still removable as an alien convicted of a crime of domestic violence or child abuse under section 237(a)(2)(E)(i) of the INA, concluding that it could “find no legally supportable basis for inferring that a waiver is available where the statute so clearly states which removal grounds may be waived.” (Emphasis added.)

Relief from Removal

That raises the question of whether the six would be eligible for any relief from removal. Given the age of their convictions, and the fact that each appears to be an alien otherwise lawfully present in the United States, any, some, or all of them may be eligible for cancellation of removal under section 240A(a) of the INA (42A cancellation).

To be eligible to apply for 42A cancellation, an alien must have been a lawful permanent resident for not less than five years, have resided in the United States for not less than seven years, and not have been convicted of an aggravated felony. It appears, as noted, that each has been convicted of an aggravated felony under section 101(a)(43) of the INA — albeit one for which they have each received a pardon.

The definition of “conviction” is contained in section 101(a)(48) of the INA. It states, in pertinent part:

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

There is no reference in that provision to a pardon, or the effect of a pardon, therein, nor is there any in section 240A(a) of the INA.

Given these facts, and inasmuch as pardons only appear be effective in restricting the ability of DHS to remove aliens on certain grounds pursuant to section 237(a)(2)(A)(v) of the INA, it could reasonably be argued that these aliens would all be barred from 42A cancellation, notwithstanding Gov. Newsom’s pardon in each of their cases (and assuming they would be removable under section 237(a)(2)(B)(i) of the INA).

There is only one somewhat applicable, contrary precedent, a 1956 case, Matter of H-. The BIA held there that an alien who received a pardon for a 1944 larceny conviction for which she had received a two-year sentence was not precluded from showing “good moral character” (GMC) under section 101(f)(7) of the INA, in a case governed by the original iteration of the INA, the INA of 1952.

That 1944 conviction was the respondent’s third. She had been convicted of larceny from a store twice before (in 1937 and 1938, respectively, both crimes involving moral turpitude), and therefore was removable under then-section 241(a)(4) of the INA (1956).

As relief from deportation, she applied for suspension of deportation under then-section 244(a)(5) of the INA (one of the precursors to the current 42A), for which she was required to show GMC for the preceding 10 years. Section 101(f)(7) of the INA has not been amended since 1952, so then and now, GMC cannot be shown if the alien has been confined for 180 days or more in the statutorily defined period as a result of a conviction.

The BIA concluded that the pardon respondent there received for that 1944 conviction “immunized [her] from all consequences flowing from that act” — including the bar to GMC (although it conceded that there were contrary, non-precedential, decisions on a similar point).

That 64-year-old precedent is called into question not only by the numerous amendments to the INA since, but also by Matter of Suh, where again the BIA limited the scope of the pardon power to the specific provision in the INA that referenced pardons.

In my next post, I will examine how ICE is likely to handle these cases under the administration of a President Biden, and how the Supreme Court is likely to interpret the pardon provision.

This content was originally published here.