Symposium: Moncrieffe: Whither Proportionality & the Constitution
By Mark Noferi, Instructor of Legal
Writing, Brooklyn Law School
First, thanks to César for the
opportunity to speak as part of this Symposium, and for providing a platform to
analyze these important issues in real-time. It’s one of the real benefits that
“new media” vehicles like crimmigration.com provide in
fostering academic analysis. (Another benefit is that I can post this from
Coimbra, Portugal, while attending and speaking at the excellent First
International Crimmigration Control Conference, organized by Juliet Stumpf, Robert Koulish, Maria Joao Guia, and others.)
The Moncrieffe argument yesterday brought up fascinating issues: some
narrow and technical, for those of us who closely follow crimmigration statutory
interpretation, and some broader and wide-ranging, as to this Supreme Court’s
future treatment of immigration laws. And the two relate, since the very
technical complexity of these issues may raise constitutional issues for
another day. First, here, I’ll “keep score” on the argument in Moncrieffe’s
case. Second, I’ll address the more far-reaching issues that Moncrieffe raises beyond its four corners
(some raised by our other Symposium participants), most of which remained largely
implied, unsaid, or unexplored at oral argument. One of them – the impact of
non-categorical analysis on constitutional right-to-counsel arguments for
detained immigrants – is addressed in my forthcoming Michigan Journal of Race
& Law article, Cascading Constitutional Deprivation: The Right to Appointed
Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings (forthcoming
2012). (Disclosure: The law professors’
amicus brief, authored by Symposium participant Alina Das, cites it with my
permission at p. 29.)
To recap, petitioner Moncrieffe, a
first-time drug offender, was arrested in Georgia with 1.3 grams of marijuana
(about two or three joints’ worth) while driving with another individual, and
pled guilty to possessing marijuana with intent to distribute, without any
facts evidencing more than social sharing. The transcript is here. Prior previews
(ourSymposiumparticipants, SCOTUSblog, ImmProf Blog), and other
recent argument summaries (SCOTUSblog, ImmProf Blog) provide good
background as well.
Keeping Score—The Moncrieffe Argument
At the outset, three Justices
(Sotomayor, Kagan, and Kennedy) seemed very skeptical of the Government’s
arguments; two expressed moderate skepticism on some points but not others
(Ginsburg and Roberts); two asked targeted questions without tipping their hand
(Breyer and Scalia); and two were silent (Alito and Thomas).
Much of the argument
centered on statutory interpretation. Put as simply as possible: When Congress made
“illicit trafficking” in drugs an “aggravated felony” under the Immigration
& Nationality Act (INA), in light of the already-enacted federal ControlledSubstances Act (CSA) which made some marijuana distribution crimes felonies
and some misdemeanors, did Congress intend that all
state misdemeanor distribution convictions that contain the same elements of
the CSA felony be “aggravated felonies,” and render someone mandatorily deportable
and detainable without relief? Compare 8 U.S.C. § 1101(a)(43)(B) (under
immigration law, “illicit trafficking,” which includes a “felony punishable
under the Controlled Substances Act,” is “aggravated felony”) with 21 U.S.C. § 841(b)(1)(A)-(E) (CSA felonies),
§ 841(b)(4) (misdemeanor
distribution of a small amount for no remuneration), and § 844 (misdemeanor first-time simple
possession).
Or, under the traditional “categorical
approach,” in effect when Congress passed these laws, should the Court examine
the four corners of the conviction to determine whether petitioner’s conviction
“necessarily” corresponds to a felony; and if not “necessarily” (as in
Moncrieffe’s case), resolve the indeterminacy in the immigrant’s favor? Or, as
the Fifth Circuit found in Moncrieffe’s case, and the BIA later adopted as its
rule, should the Court assume the former, but provide the immigrant an
opportunity to rebut that assumption by conducting a hearing with “any
probative evidence” into the facts underlying the conviction?
Petitioner Moncrieffe’s
counsel advanced the second position, while the Government ultimately at oral
argument advanced the third – or as Justice Kagan called it, “your whole
back-end process.” Tr. at 34:25. That Government position did not sit well with
the Court, most notably Justice Kagan. She stated in so many words that either
Congress intended a categorical approach or it did not. As she said, “all we’ve
done in our past cases… is compare the elements. But if all we do is compare
the elements, then we don’t get to your discretionary scheme in which we also
admit evidence of the case-specific nature of the offense.” Tr. at 48:25 –
49:16. So the Government’s “back-end process, which says, oh, well, maybe not,
maybe he’s not automatically deportable…it doesn’t come from the statute, and
it seems to run into the statutory language which says an aggravated felon must
be deported, the end.” Tr. at 34:12-35:4.
Justices Roberts and
Ginsburg offered similar concerns. See Tr. at 33:1-6 (Roberts: “You say
Congress took away the Attorney General’s discretion. Then you come back and
say, well, we’re going to exercise that discretion…”), 17:22-18:4 (Ginsburg,
citing Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010)).
Interestingly, Justice
Roberts signaled he might have supported the first position above—that all
these state “social sharing” misdemeanants might well be “aggravated felons”
for immigration purposes under the categorical approach. Tr. 14:15-21. Justice
Breyer did as well. See Tr. at 61-62 (“the word “punishable”
doesn’t appear in… the other [statutes] that we’ve construed”)… That said, even
the Government had backed away from this position by oral argument.
If the question, then, was
the feasibility of the second approach—Petitioner’s categorical approach—the
Justices spent significant time looking for ways to correct any
under-inclusivity of this approach. Justice Sotomayor reiterated multiple times
that the salient question was mandatory, versus discretionary, deportability,
and an immigration judge could still deny cancellation of removal if allowed
that discretion. See Tr. at 8:17-20 (“None of these immigrants are
being let out automatically”). Still, Sotomayor also advanced the idea of a
modified categorical approach based on facts in the plea allocution. See Tr. at
57:15-19 (“in many of these cases that we’re talking about, it is possible that
the plea allocution itself would set out the amounts that the alien sold or
show that he sold something… and that would take care of this issue of how many
people are escaping automatic removal.”).
In my view, it is hard to
imagine Justice Sotomayor advancing this position before Padilla v. Kentucky, 130
S. Ct. 1473 (2010), which required criminal
defense counsel to advise on the immigration consequences of a conviction. Before
then, and especially before the retroactive INA revisions, criminal lawyers
wouldn’t have included those facts in a plea
allocution since they wouldn’t have envisioned their client would be
detained and deported (if they considered immigration consequences at all). Today,
though, the President of the National Association of Immigration Judges has described “seasoned
immigration practitioners” as “virtually obsessive in developing records” in
criminal cases. Dana Leigh Marks & Denise Noonan Slavin, A View Through the Looking Glass: How Crimes
Appear from the Immigration Court Perspective, 93 Fordham Urban L.J. 91,
105 (2011). Or at least, they should be.
This may be
somewhat aspirational (as the law professor’s
amicus put it, whether “nonessential facts” to the criminal record
appear in that criminal record is often “completely haphazard.” See at 14). And
Padilla at this point requires only
advice. But as Alina Das pointed
out recently, the strict categorical approach in immigration courts has
already been departed from, for some aggravated felonies and crimes of moral
turpitude. This departure has already prospectively and “dramatically” changed
the calculus for plea agreements, as the law professor’s amicus noted. Id. It
highlights the issues facing
criminal defense providers as they attempt to best comply with their Padilla obligations in criminal court (and in some forward-thinking
instances, go beyond them). And leaving aside constitutional obligations, it
highlights the dramatic positive effect
that continuity from criminal court to
immigration court can have. As I argue in my article, the more that
criminal facts are re-litigated in immigration court, as categorical analysis
falls by the wayside, the more it makes sense for criminal lawyers to litigate
in immigration court, since Padilla already requires them to research the
issues. See IV.B.2.
Lastly,
Justice Kagan proposed a novel (or perhaps not-so-novel) approach to solving
any under-inclusivity from use of the categorical approach—that the Attorney
General, if he so chose, could issue a categorical per se directive denying cancellation of removal relief to those
state misdemeanants with facts evidencing drug trafficking for money. Tr. at
23: 5-9. Justice Kennedy “had the same question.” Id. at 24:5-6. Petitioner’s counsel Tom Goldstein demurred,
saying that “[a] per se categorical rule would be very unlike what we
understand the Attorney General to do in any other circumstance,” and might be
“arbitrary and capricious.” Id. at 23:10-24:15.
Seasoned
immigration law cynics might remember the INS’ treatment of Salvadorans, and
say that such a policy might be very like what we understand DHS to do, except
publically and visibly. Most likely, such a policy would raise thorny issues,
involving the interplay of due process and perhaps equal protection with
plenary power principles, in the context of purely discretionary relief, all
beyond the scope of this blog post. See Daniel Kanstroom, The Better Part of Valor: The REAL ID Act, Discretion and the”Rule” of Immigration Law, 51 N.Y.L. Sch. L. Rev. 161 (2006); Daniel Kanstroom, Surrounding the Hole in the Doughnut:Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703 (1997).
Scalia
asked a targeted question about the impact of Apprendi. Tr. at 54:19-23. Thomas and Alito remained silent. (Perhaps
more interesting regarding Alito, given his relatively impassioned Padilla concurrence regarding the
extreme complexity of immigration law’s treatment of criminal convictions.)
Thus, there looked to be
at least six votes for Petitioner’s position (Sotomayor, Kagan, Kennedy, Ginsburg,
Roberts, and Breyer), albeit with some limiting principle, or openness to
creative government approaches in discretionary relief proceedings. It might give
one pause that had the Government taken its more extreme position, Roberts’ and
Breyer’s votes might have been supportive.
What Does Moncrieffe Show Us About
Crimmigration Law?
Even
more interesting is what the Moncrieffe arguments
show us about how U.S. courts treat crimmigration law today.
Whither
Proportionality? All of our previews to this case referenced the
principle of proportionality, either explicitly (as Alina Das and Jordan Wells
mentioned), or implicitly by noting the minor nature of Moncrieffe’s drug
conviction. Indeed, the first sentence of Petitioner’s
reply brief states “Petitioner, a first-time drug offender, was
arrested in Georgia in possession of 1.3 grams of marijuana”… If any of us were assigned to argue
this case, we’d intuitively look for a way to highlight these facts. Or imagine
explaining your case to a non-lawyer. “They
were only smoking a couple joints together in a car… he got charged with
“trafficking,” jailed for a year, and deported even though he’d lived here for
years.” At least, that’s what
the media focused on. ABC News led its Moncrieffe
story with the headline, “Should You Get
Deported for Carrying Three Joints?”
So it’s not a stretch to
say that “Moncrieffe is about
proportionality.” It’s probably not
a stretch to say “crimmigration law is about proportionality,” given how often
these issues arise. Yet the word “proportional” was never spoken during oral argument
yesterday. Why?
Those of us whom are law
professors know the answer is the plenary power doctrine. We know the word
“proportionality” during argument might draw a quick response from a Justice
that “Congress
may make rules as to aliens that would be unacceptable if applied to
citizens.” Mathews v. Diaz, 426 U.S. 67,
79-80 (1976); Demore v. Kim, 538 U.S. 510,
527-29 (2003). Indeed, Tom Goldstein, an experienced
Supreme Court practitioner, likely knew this as well as anyone. His argument
framed the argument exclusively as one of statutory interpretation. See Tr. at at
9:8-20 (“They say our position is underinclusive
because the Georgia statute does include conduct that would be a felony….”
“[T]heir rule is overinclusive. It treats as felonies some convictions that
should be misdemeanors.” “[O]ur underinclusivity is a problem, but it’s… not as
big as their problem…. [A]s this Court explained in Carachuri-Rosendo, the offense still is removable…”).
Yet there are incongruities
in indirectly making a proportionality argument in statutory clothing. For one,
it is entirely unclear what Congress intended when it passed the “aggravated
felony” provisions. The 1996 provisions, which ushered in what Daniel Kanstroom
calls our “vast experiment in
deportation,” were passed extremely quickly, as a rider to
legislation, with little debate. As Justice Roberts implied, what’s to say that
Congress didn’t intend for all noncitizen social marijuana sharers to be
mandatorily detained and deported without relief? Indeed, if the Government hadn’t abandoned that position at
oral argument, because of these proportionality concerns, it might have
garnered more Justices’ votes.
This leads to the second
point Moncrieffe shows us about how
U.S. courts treat crimmigration law today:
Constitutional
Rulings on Subconstitutional Grounds. Essentially, the Court
is undertaking a sub rosa
proportionality analysis by purporting to divine Congress’ intent – in other
words, undertaking constitutional analysis on subconstitutional grounds.
Hiroshi Motomura explained this phenomenon well in two groundbreaking articles.
Hiroshi
100 Yale L.J. 545 (1990); Hiroshi Motomura, TheCurious Evolution of Immigration Law: Procedural Surrogates for SubstantiveConstitutional Rights, 92 Colum. L. Rev. 1625 (1992). (We see
this even in detention cases, where the deprivation of liberty should provide a
fairly clear constitutional issue. See Zadvydasv. Davis, 533 U.S. 678 (2001) (avoiding constitutional issue by
interpreting statute to impose six-month presumption under which detention is
reasonable).) Motomura suggested
that this reliance on “surrogates” for constitutional analysis is a best a
“crude tool,” and impedes the sound development of immigration law. 92 Colum.
L. Rev. at 1632, 1702.
Moncrieffe provides
an example of this trend. For one, so long as the Constitution is left out of
the discussion, the arguments as to statutory interpretation are at best
incomplete. What’s to say that Congress didn’t intend for all noncitizen social
marijuana sharers to be mandatorily detained and deported without relief? Congress can achieve uniformity and
predictability through very harsh means, as Justice Roberts implied, and if
Congress intended harsh, disproportional results, it would not be the first
time regarding immigrants.
The answer is that the
Constitution says it, in at least two ways. One is the vast disproportionality
of detaining and deporting long-time lawful permanent residents for activity
such as smoking two or three joints. (MichaelWishnie and AngelaBanks have
done excellent work on proportionality.) Indeed, Justice Kagan referenced this
in disparaging the Government’s attempt to insert some proportionality into the
process. See Tr. 48:25 – 49:16 (“so your arguments all go towards a very purist
solution. And then you say, oh, no, that’s a crazy solution….”).
Another is the due process
concerns raised by forcing immigrants, while mandatorily detained without bail
or a lawyer, often thousands of miles away from home, to produce in court
evidence and witnesses relating to their underlying conviction, and then make
complicated statutory arguments about that evidence. My article
addresses these procedural due process arguments, in articulating the
“cascading constitutional deprivation” of mandatory pre-hearing detention. The NIJC amicus
called it a classic “Catch 22”: “a detainee
cannot be released unless she produces evidence to support her arguments; but
she cannot find evidence to support her arguments unless she is released…” Id.
at 6.
Petitioner’s counsel
almost got there yesterday, as he referenced these due process concerns in
making the case for his statutory interpretation (albeit without using the term
“due process). See Tr. 25:20-25 (“it’s going to be extremely difficult for
uncounseled noncitizens who are in jail, who don’t have access to tools of
communication, to prove to an immigration judge this fact-bound inquiry…”).
Yet these issues were not
addressed in great detail yesterday. It is not the fault of the parties, who
must win a case before the Court given precedent. But so long as the
Constitution is left out of crimmigration law rulings like this, crimmigration
law may rest on a shaky foundation, one that is open to countervailing
statutory arguments (as Justices Roberts and Breyer raised), and perhaps
engenders public frustration with the disconnect between courts’ public and
private rationales.
Future Issues
That May Force the Constitutionalization of Immigration Law—i.e., The Demise of Categorical Analysis and the Right to Counsel. So what issues
will force the Court to address constitutional issues regarding immigration
law? Most likely, they will be procedural due process issues, as courts have
carved out more of a “procedural due process” exception to plenary power than
in any other area, and Justice Kennedy signaled some willingness in that
direction in his Demore concurrence. Demore v. Kim, 538 U.S. 510, 531-32
(2003) (Kennedy, J., concurring).
I’ll raise one issue here that relates
to Moncrieffe. The increasing demise
of categorical analysis, and concurrent requirement for immigrants to litigate
complicated evidentiary as well as statutory issues in immigration court, may
change the procedural due process analysis so as to strengthen right-to-counsel
arguments in immigration court (especially for detainees).
Moncrieffe is not the first
time the Government has sought to depart from categorical analysis so as
increase its chances of deporting immigrants. As Alina Das set out, noted above,
the Supreme Court opened up some aggravated felony determinations to
fact-specific determinations in Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009). And, the
Attorney General added a third level of fact-finding to some crime of moral
turpitude determinations in Matter of Silva-Trevino, 24 I. & N. Dec.
687 (A.G. 2008), allowing “any additional evidence or factfinding” the
immigration court deems necessary. Moncrieffe
presents a more indirect twist on this calculus: in prior cases, as Tom
Goldstein put it, “the Government wanted to go beyond the record to go
up. But here what they’re saying is that [petitioner] should go beyond the
record to figure out if you should go down.” Tr. 18:5-14. But the import is the
same – because of the Government’s willingness to include more facts, more
immigrants will be likely be deported.
As I argue in the article,
this affects right-to-counsel procedural due process arguments in two ways. First,
the relitigation of facts in immigration court increases the complexity and
adversarial nature of either a detention or deportation hearing. Not only must
immigrants argue immigration laws as complex as the tax code, against trained
Government counsel, but they now must produce and cross-examine witnesses, and
use advocacy skills to proffer interpretations of those facts before the court.
(The departure from categorical analysis may also make it less likely that
non-lawyer assistance such as a social worker will be constitutional adequate).
Also, the relitigation of facts belies any Government arguments as to the
necessity for “informal” or “efficient” deportation hearings. In these
categorical analysis cases before the Supreme Court, it has always been the
Government that has sought to bring more facts into the process.
The Continuing
Education of the Supreme Court on Crimmigration. Lastly, it is
worth noting that with each crimmigration case that reaches the Supreme Court,
the Justices become more educated on these incredibly complex statutory and
procedural issues, especially where they raise
disproportionality or unfairness concerns. In Moncrieffe, for example, Justice Breyer didn’t know that Moncrieffe’s
conviction counted as a “conviction” even though he had been sentenced to
probation, without a judgment of guilt, and the state did not deem his activity
a conviction. Tr. 12:6-13:7. Or, Justice Kennedy asked yesterday whether the
“back-end” factual immigration hearing would be done at the beginning of the
state prosecution. Id. at 15:6-21. (Indeed, the question is telling as to the
overlapping nature of “crimmigration” law.) Or, in Padilla,
Justice Alito spent several pages detailing the incredible complexity of the
immigration consequences of criminal convictions.
Because of this continuing education,
by the time the above-mentioned Constitutional cases do reach the Supreme
Court, it is likely the Court may have both a greater knowledge of the issues,
and a willingness to depart from statutory grounds. I argue that
right-to-counsel issues, at least in detained cases, especially mandatory
detention, are ripe for the Supreme Court. It is my hope they will be addressed
in the next decade.
