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Would growth and possession of a controlled substance (marijuana in 1974), by an adult be considered CIMT at that time?

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The growth of a dozen plants with extensive lighting specifically for harvesting in the home, and possession of a controlled substance (marijuana in 1974), by an adult-was this considered crimes involving moral turpitude?

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Attorney answers 1

Posted

"at that time" seems anachronistic. If the provision you are trying to take advantage of is present day, shouldn't you ask "at this time"?

The question seems to suggest that you may have been reading the supreme court case of MONCRIEFFE v. HOLDER, ATTORNEY GENERAL, 11-702, April 23, 2013

To cite two passages:

(1),.. Government's concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment does not mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled substances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker. Pp. 9-21.

The second quote was added by Sotomayor:

(2) The Immigration and Nationality Act (INA), 66 Stat. 163 , 8 U.S.C. §1101 et seq., provides that a noncitizen who has been convicted of an "aggravated felony" may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not.

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Moncrieffe sets up the mandatory / discretionary threshold associated with an aggravated felony. It points out that any marijuana growth still subjects to deportation but that so long as the aggravated threshold is not crossed, that arguments can be had.

Note a third quote just a few lines into the case:
(3) A conviction under state law "constitutes a 'felony punishable under the [CSA]' only if it proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, 549 U.S. 47 , 60.

In the facts the questioner gave, it did not state whether the conviction was federal or state.

If it was a state conviction, would it have been a felony under the federal law?

The citation (3) does not necessarily state that equivalency would need to occur contemporaneously.

I suspect that the government will argue in the way that best suits them. A present day action government argument may be that considering current day equivalency would be tantamount to an ex-post facto mechanism should the equivalency be racheted upward. Government may argue regarding the federal equivalency in 1974 of harvesting at home.

A defendant might argue to receive the benefit of recent relaxation.

However, note 21 USC § 841(b)(1)(D) which imposes a 5 year maximum term of imprisonment for manufacture with less than 50 plants.

In the second link below, there is some discussion of CIMT versus aggravated felonies, and how they interplay related to the timing of the offense.

Aggravated felonies are defined at 8 USC § 1101(a)(43), & includes both federal and state offenses can be aggravated felonies.

You may want to sit down with an immigration attorney and explore a number of issues, including:

1. The State range of punishment for growing 12 plants in 1974;

2. The State range of punishment for growing 12 plants today;

3. The actual 1974 sentence, and what the maximum was and what the minimum was;

4. If the actual 1974 sentence was a state sentence, what the 1974 federal sentence maximum was and what the minimum was;

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Moral Turpitude is a dividing line between "no crime" or "an infraction crime" and a crime which could subject the criminal to deportation.

Much of the above discussion focuses on the line between a crime which "could" subject the criminal to deportation versus no discretion but to deport.

Both thresholds should be considered.

Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

Curtis Lamar Harrington Jr

Curtis Lamar Harrington Jr

Posted

Last comment "no discretion" related to a perfunctory waiver. A much higher threshold for justification to remain occurs after then aggravated threshold is crossed. You need to talk with an immigration attorney and supply that attorney will all facts and details to see what possibilities exist for argument.

William A. Jones Jr.

William A. Jones Jr.

Posted

If you had had to pay for that answer it would have been money well spent. EXCELLENT.

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