A Felony, I Presume? 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings

Imagine two immigrants: Sven and Ole. They have both previously—at “T1”—been convicted of a crime under state law. Sven was convicted of battery and Ole of possession of marijuana with intent to distribute. Both pleaded guilty, and their respective records of conviction contain few facts describing the precise circumstances of their crimes. Sven’s record does not mention any details—such as whether his battery was negligent or intentional—and he pleaded to a sentence of less than one year. Ole’s record indicates neither the drug quantity nor whether he was intending to sell the marijuana or merely give it to a friend. For both, these crimes were committed years ago. Both are lawful permanent residents who have built a life in the United States, married US citizens, and could have filed the application to become US citizens themselves. Now—at “T2”—both have been arrested by immigration officials. While both are deemed deportable, Sven and Ole both have the opportunity to apply for cancellation of removal as long as their previous crimes are not considered “aggravated felonies.” Both an intentional battery conviction with a sentence of over one year and possession of more than a small amount of marijuana with intent to distribute for remuneration are considered aggravated felonies. 

For Sven, proving his eligibility for cancellation of removal will not be terribly problematic. The immigration judge will look at his conviction of battery—which encompasses conduct that is both negligent and intentional—and presume that Sven did not commit a crime of violence, which requires a mens rea greater than negligence. Even though it is possible that Sven had the appropriate mens rea for a crime of violence, the court will not presume the higher mens rea. And because negligent battery is not an aggravated felony, Sven will remain eligible for cancellation of removal.

Ole might not be so lucky. Some courts will not presume that Ole committed the version of this offense carrying the lowest penalty but will instead presume that Ole had more than a “small amount” of marijuana that he intended to distribute for remuneration. Unless his record of conviction clearly states otherwise, Ole will have to introduce extra evidence regarding his T1 offense to prove that he actually possessed only a small amount of marijuana and that he did not intend to distribute it for remuneration. Otherwise, the judge will find that he has committed an aggravated felony, and Ole will be ineligible for cancellation of removal. But obtaining evidence regarding his T1 conviction will likely be impossible if too much time has passed. Further, it is not clear that an immigration judge would be equipped to hear evidence regarding the circumstances of Ole’s T1 offense.

The difference between Sven and Ole arises because of the difficulties in translating state law offenses into federal law. Immigration law defines the category of aggravated felony and often does so with reference to federal crimes as defined in the United States Code. But Sven and Ole—like most criminal defendants in this country—were convicted of state law offenses. Yet state and federal law frequently use different factors in determining the severity of a crime, making it difficult to identify federal analogues to state crimes. Thus the fates of Sven and Ole depend on the translation of their state law offenses into federal offenses—they will remain eligible for cancellation of removal only if the state law crimes are translated into federal crimes that are not aggravated felonies. This process of translating state law convictions into a federal law category is generally governed by what is known as a “categorical approach.” It is both highly technical and the subject of numerous circuit splits. This Comment discusses one category of crimes that constitutes an aggravated felony: felony drug crimes under the federal Controlled Substances Act (CSA).