Moncrieffe v. Holder, Jr., No. 10-60826 (5th Cir. 2011)
Annotate this CasePetitioner, a native of Jamaica, petitioned for review of a removal order of the BIA. After he pled guilty of possessing marijuana with intent to distribute in Georgia, DHS charged petitioner with being removable for this crime, which it contended should be considered a felony under the Controlled Substances Act (CSA), 8 U.S.C. 1227(a)(2)(A)(iii), and an "aggravated felony" under immigration law. The IJ agreed, and on appeal, the BIA endorsed the felony classification and dismissed petitioner's appeal. The court adopted the First and Sixth Circuits' approach that the default punishment under 21 U.S.C. 841 was a felony. Consequently, as was true for federal defendants charged under section 841, petitioner's crime was equivalent to a federal felony where petitioner failed to meet his burden of proving that he was convicted of only misdemeanor conduct. Petitioner's other arguments were without merit. Therefore, the petition for review was denied.
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