Justia Immigration Law Opinion Summaries

Garcia became a lawful permanent resident of the United States in 1995. In 1998 he pled guilty to possession of marijuana with intent to deliver. An immigration judge refused to cancel the Department of Homeland Security's removal proceedings. The Board of Immigration Appeals affirmed. The Sixth Circuit agreed, reasoning that Garcia was convicted of an aggravated felony under 8 U.S.C. Sec. 1101(a)(43), which refers to state offenses considered drug-trafficking crimes, defined as state offenses "punishable as a felony." Although 21 U.S.C. Sec. 841(b)(4) provides that "distributing a small amount of marihuana for no remuneration" is a misdemeanor, punishable by not more than one year in prison, Michigan law provides that conviction of intent to deliver any amount of marijuana is punishable by up to five years in prison. The state law conviction presumptively corresponds to the federal felony and the government was not required to prove the amount of marijuana or that a remunerative exchange occurred. Because Garcia admitted to intent to deliver, he was not entitled to a waiver available for simple possession. The court declined to consider a claim of ineffective assistance of counsel.