Earlier this week, the U.S. Supreme Court granted a petition for a writ of certiorari in Moncrieffe v. Holder, Dkt. No. 11-702.  A request for the U.S. Supreme Court to take a case is done by filing a petition for a writ of certiorari.  This is an appeal of a decision of the U.S. Court of Appeals for the Fifth Circuit.  The Fifth Circuit held that a state statute that defined the sale of marijuana to include giving away marijuana without remuneration constituted a drug trafficking crime.  Under the Immigration and Nationality Act, a drug trafficking crime is classified as an aggravated felony.  In immigration law, there is virtually no relief from being classified as an aggravated felon.  Most individuals who are classified as aggravated felons in their removal proceeding are deported.   There is a split among the U.S. Court of Appeals as to whether a state statutes that defines “sale” as giving marijuana away without remuneration constitutes a drug trafficking crime that can be classified as an aggravated felony.  The First, Sixth and now Fifth Circuits say that it is.  The Second and Third Circuits say that it is not.  The Second Circuit case is Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008).  I argued Martinez v. Mukasey in the Second Circuit.

It’s been a dream of mine to argue before the U.S. Supreme Court.  It is a bit frustrating for me to see the Supreme Court accept a writ of certiorari on a case with an issue that I litigated.  Sadly, the Government did not seek a writ of certiorari in Martinez.  A similar thing happened to me last year, when the Supreme Court accepted a writ of certiorari in Judulang v. Holder, 132 S. Ct. 476 (2011).  Judulang involved the same issue as a case I had litigated in the Second Circuit, Blake v. Carbone, 489 F.3d 88 (2d Cir. 2008).  At least, I can take comfort in the thought that I am on the cutting edge of immigration litigation.