IMMIGRATION LAW - COURT DECISION PREVENTS UPDATED MARIJUANA LAWS FROM APPLYING IN ALL DEPORTATION CASES - MEDINA-RODRIGUEZ V. BARR, 979 F.3D 738 (9TH CIR. 2020).

• Author: Lombardo, Madison

The United States is a sanctuary for many immigrants who would otherwise face danger in their home country for uncontrollable reasons. (1) Immigrants, however, are subject to removal or other consequences for a number of reasons including criminal convictions. (2) In Medina-Rodriguez v. Barr (3), the United States Court of Appeals for the Ninth Circuit considered whether Medina-Rodriguez's conviction qualified him for removal based on California and federal marijuana definitions. (4)

The Court held that Medina-Rodriguez did not establish a basis for a deferral of removal under the Convention Against Torture (CAT) and therefore was subject to removal for his possession and sale of marijuana. (5)

Noe Medina-Rodriguez entered the United States when he was six months old, becoming a lawful, permanent resident in 1987. (6) In 2011, he was convicted for the possession and sale of marijuana, a felony under California law at the time, and he was sentenced to 180 days in prison. (7) Approximately seven years later, in 2018, the Department of Homeland Security (DHS) served Medina-Rodriguez with a Notice to Appear (NTA), informing him that he was subject to removal because of his conviction for an aggravated felony in 2011. (8)

Upon learning of his potential removal, Medina-Rodriguez filed a petition of deferral of removal under CAT, claiming he would be subject to torture if he returned to Mexico, due to his physical disabilities. (9) Additionally, Medina-Rodriguez also contended he was not subject to removal because his violation was not an aggravated felony by noting that the state and federal drug schedules defined marijuana differently after California removed marijuana as a Schedule I drug. (10) The Court ultimately concluded that Medina-Rodriguez was removable based on the matching drug schedules at the time of his conviction and denied his petition for relief under the CAT for failing to properly established grounds for relief. (11)

Aliens are subject to removal (deportation) if they belong to particular classes, which range from overstaying on a visa to being convicted of an aggravated felony. (12) In removal proceedings, immigration judges must first determine if an alien belongs in a class that subjects them to deportation. (13) Immigration judges consider all evidence for and against a person's removal and circumstances surrounding the reason for potential removal. (14)

Removal proceedings, however, require more than eligibility, as the immigration judge allows for individuals to petition for relief to prevent themselves from being removed to their country of origin. (15) The relevant form of relief in the present case is the CAT, which is reserved for immigrants who cannot return to their country of origin based on torture they will face upon return. (16) Although many forms of relief exist and are meant to protect noncitizens facing removal, individuals must meet all requirements for relief before it can be granted. (17)

In cases involving drug related convictions, the courts often consider both federal and applicable state laws to properly define the crime. (18) A categorical approach to this issue considers if federal and state drug schedules match to properly determine whether a noncitizen is subject to removal from the United States. (19) Additionally, courts look to which laws are relevant to the case at the time the noncitizen is deemed inadmissible and at the time of removal, especially since many laws change drastically over time. (20)

The Court in Medina-Rodriguez v. Barr carefully considered whether to remove Medina-Rodriguez based on marijuana drug schedules and possible relief by first defining his drug conviction. (21) The California marijuana drug schedule changed since Medina-Rodriguez's conviction and no longer aligned with the federal drug schedule, creating potential unpredictability for aliens by applying new laws. (22) The Court used a categorical approach when determining that the California drug schedule and federal drug schedule were a match at the time of Medina-Rodriguez's conviction, thus, he committed an aggravated felony by possessing and selling marijuana, classifying him as removable. (23)

Upon determining Medina-Rodriguez was removable, the Court examined his relief claims under the CAT. (24) Despite agreeing that Medina-Rodriguez could be targeted and tortured due to his physical disabilities and tattoos, the Court did not find enough evidence to prove torture was likely to arise from his physical disabilities since most evidence indicates cruel treatment as a result of mental disabilities. (25) Additionally, Medina-Rodriguez's evidence was primarily based on hypothetical situations that would fall into place for the torture to commence, which does not reach the standard of showing it is "be more likely than not" to happen. (26) Based on the definition determined by the drug schedules and the evidence for relief presented, the Court ultimately denied Medina-Rodriguez petition for deferral of removal. (27)

The Court correctly took a logical approach to address a marijuana charge that has drastically changed over the years in many states to set a precedent establishing a bright-line standard for future courts facing removal cases involving drug convictions. (28) Although it seems instinctive to rely on current law in all cases, removal proceedings are different, requiring courts to rely on precedent that may no longer be binding but is essential when determining a case that is based on conviction under previous law. (29) Immigration law needs to be predictable for aliens to understand how to legally remain in the United States and what the potential consequences of any actions may be. (30)

The government uses its resources to best determine how drugs should be scheduled, but this is difficult because new evidence constantly arises that causes the drug schedules to drastically change over time, especially among states. (31) Drug convictions can be serious, and it is in the best interest of the United States to properly address noncitizens who may pose some threat to society. (32) Although laws change, noncitizens should always look to the law at the time of their actions to assess the possible consequences, and keep in mind that the law may change, rendering their crimes unpunishable. (33)

Additionally, it is essential that the United States ensure resources and assistance for noncitizens in dire need of leaving or staying out of their country of origin and to not allow anyone with any level of discomfort in their country of origin use those resources. (34) Asylum and relief from removal are meant to protect noncitizens from danger in other countries while also maintaining U.S. citizens' safety. (35) Courts must carefully consider the merits behind evidence presented by a noncitizen of actual danger and fear of their home countries before deciding whether a noncitizen can avoid removal because relief is not meant to keep just anyone from being removed from the United States. (36)

In Medina-Rodriguez v. Barr, the Court determined whether the law at the time of removal or the law at the time of conviction should apply when an immigrant is facing removal. Ultimately, the Court held that, even when laws change over time, the laws from the time of conviction should be used when determining removability and relief eligibility. Although laws may dramatically differ at the time of removal versus when an alien was convicted of a crime, the relevant law is from the time of conviction. This allows for consistency, fairness, and predictability in immigration law and removal proceedings. Therefore, the holding of the United States Court of Appeals for the Ninth Circuit in Medina-Rodriguez v. Barr was the correct one.

Madison Lombardo

(1). See How to Enter the U.S., USAGOV (Sept. 20, 2021), https://www.usa.gov/enter-us (informing foreigners about immigration process). People travel to the United States for a variety of reasons. Id. There are procedures for people coming into the United States when entering as a refugee; and applying for visas, immigrant status, or asylum. Id. Travelers can apply for student visas, immigrant visas for permanent residency, visitor visas, transit visas, or fiance visas. Id. See also Why do People Immigrate?--the Different Causes of Immigration, LUTHERAN IMMIGR. & REFUGEE SERV. (July 14, 2021), https://www.lirs.org/causes-of-immigration/ (discussing reasons for and impacts of immigration). Every year immigration increases globally, changing countries' populations, cultures, economies, and environments. Id. The United Nations reported that about one in every thirty people are international migrants. Id. People have many reasons for immigrating to foreign countries, usually factors related to quality of life. Id. Quality of life factors include oppression based on ethnicity; gender; race and culture; conflict zones; human rights violations; and frequently occurring natural disasters. Id. The United States remains a popular destination for migrants because of work opportunities, security, a safer environment, education, and healthcare. Id.

(2). See BRYAN LONEGAN & THE IMMIGR. L. UNIT OF THE L. AID SOC'Y, IMMIGRATION DETENTION AND REMOVAL: A GUIDE FOR DETAINEES AND THEIR FAMILIES, L. AID SOC'Y, 2 (Feb. 2006), available at https://www.nilc.org/wp-content/uploads/2015/12/detentionremovalguide_2006-02.pdf (outlining rules and guidelines for immigrant detention). Immigration law is ever-changing, and it is important for individuals and families to be aware of possible consequences they may face as immigrants in the United States. Id. at 1. Unfortunately, many immigrants do not understand the rules surrounding their immigration status and are detained and removed without ever knowing their rights or how to avoid deportation. Id. Removal proceedings are often completed in three steps in which the judge decides if an immigrant is removable based on...