moncrieffe holder attorney general argued october decided april immigration nationality act ina noncitizen convicted aggravated felony deportable iii also ineligible discretionary relief ina lists aggravated felony illicit trafficking controlled substance relevant includes conviction offense controlled substances act csa makes punishable felony one year imprisonment see conviction state law constitutes punishable csa proscribes conduct punishable felony federal law lopez gonzales petitioner moncrieffe jamaican citizen legally found police grams marijuana car pleaded guilty georgia law possession marijuana intent distribute federal government sought deport reasoning conviction aggravated felony possession marijuana intent distribute csa offense punishable five years imprisonment immigration judge ordered moncrieffe removed board immigration appeals affirmed fifth circuit denied moncrieffe petition review rejecting reliance makes marijuana distribution punishable misdemeanor offense involves small amount remuneration holding felony provision provides default punishment offense held noncitizen conviction marijuana distribution offense fails establish offense involved either remuneration small amount marijuana aggravated felony ina pp categorical approach generally employed determine whether state offense comparable offense listed ina see nijhawan holder noncitizen actual conduct irrelevant instead state statute defining crime conviction examined see whether fits within generic federal definition corresponding aggravated felony gonzales state offense categorical match conviction offense involved facts equating generic federal offense shepard examines state conviction necessarily involved facts underlying case presumes conviction rested upon nothing least th acts criminalized determining whether even acts encompassed generic federal offense johnson pp categorical approach applies illicit trafficking controlled substance generic crim nijhawan thus state drug offense must meet two conditions must necessarily proscribe conduct offense csa csa must necessarily prescribe felony punishment conduct possession marijuana intent distribute clearly federal crime question whether georgia law necessarily proscribes conduct punishable felony csa title provides certain exceptions violation marijuana distribution statute punishable term imprisonment years however one exceptions provides person violates statute distributing small amount marihuana remuneration shall treated simple drug possessor misdemeanant dovetailing provisions create two mutually exclusive categories punishment csa marijuana distribution offenses one felony fact conviction georgia statute standing alone reveal whether either remuneration small amount involved moncrieffe conviction correspond either csa felony csa misdemeanor thus conviction necessarily involve facts correspond offense punishable felony csa pp government contrary arguments unpersuasive government contends irrelevant merely mitigating sentencing factor element offense understanding inconsistent holder recognized congress chosen define generic federal offense reference punishment may necessary take account federal sentencing factors government also asserts marijuana distribution conviction presumptively felony csa makes neither felony misdemeanor provision default government approach lead absurd result conviction statute punishes misdemeanor conduct nevertheless categorical aggravated felony government proposed remedy anomaly noncitizens given opportunity immigration proceedings demonstrate predicate marijuana distribution convictions involved small amount marijuana remuneration inconsistent ina text categorical approach government procedure require nation overburdened immigration courts conduct precisely sort post hoc investigation facts predicate offenses long deemed undesirable require uncounseled noncitizens locate witnesses years fact finally government concerns consequences decision exaggerated escaping aggravated felony treatment mean escaping deportation marijuana distribution offense still render noncitizen deportable controlled substances offender found aggravated felon noncitizen may seek relief removal asylum cancellation removal attorney general may discretion deny relief finds noncitizen actually serious drug trafficker pp reversed remanded sotomayor delivered opinion roberts scalia kennedy ginsburg breyer kagan joined thomas alito filed dissenting opinions opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press adrian moncrieffe petitioner eric holder attorney general writ certiorari appeals fifth circuit april justice sotomayor delivered opinion immigration nationality act ina stat et provides noncitizen convicted aggravated felony may deported country ina also prohibits attorney general granting discretionary relief removal aggravated felon matter compelling case among crimes classified aggravated felonies thus lead harsh consequences illicit drug trafficking offenses must decide whether category includes state criminal statute extends social sharing small amount marijuana hold ina allows government deport various classes noncitizens overstay visas convicted certain crimes including drug offenses ordinarily noncitizen found deportable one grounds may ask attorney general certain forms discretionary relief removal like asylum fear persecution home country cancellation removal among things lawfully present number years noncitizen convicted one narrower set crimes classified aggravated felonies deportable iii also ineligible discretionary forms relief see ii ina defines aggravated felony include host offenses among illicit trafficking controlled substance general term defined ina includ es drug trafficking crime defined section title ibid turn defines drug trafficking crime mean felony punishable controlled substances act two statues relevant chain definitions ends provides felony offense maximum term imprisonment authorized one year upshot noncitizen conviction offense controlled substances act csa makes punishable one year imprisonment counted aggravated felony immigration purposes conviction either state federal law may qualify state offense constitutes punishable controlled substances act proscribes conduct punishable felony federal law lopez gonzales petitioner adrian moncrieffe jamaican citizen came legally three traffic stop police found grams marijuana car equivalent two three marijuana cigarettes moncrieffe pleaded guilty possession marijuana intent distribute violation code ann georgia statute providing lenient treatment offenders trial withheld entering judgment conviction imposing term imprisonment instead required moncrieffe complete five years probation charge expunged app brief petitioner alleging georgia conviction constituted aggravated felony federal government sought deport moncrieffe government reasoned possession marijuana intent distribute offense csa punishable five years imprisonment thus aggravated felony immigration judge agreed ordered moncrieffe removed app pet cert board immigration appeals bia affirmed conclusion appeal appeals denied moncrieffe petition review rejected moncrieffe reliance upon provision effect makes marijuana distribution punishable misdemeanor offense involves small amount marijuana remuneration held federal criminal prosecution default sentencing range marijuana distribution offense csa felony provision rather misdemeanor provision moncrieffe georgia offense penalized possession marijuana intent distribute concluded equivalent federal felony ibid granted certiorari resolve conflict among courts appeals respect whether conviction statute criminalizes conduct described felony provision misdemeanor provision statute punishes marijuana distribution without regard amount remuneration conviction offense proscribes conduct punishable felony lopez reverse ii government alleges state conviction qualifies aggravated felony ina generally employ categorical approach determine whether state offense comparable offense listed ina see nijhawan holder gonzales approach look facts particular prior case instead whether state statute defining crime conviction categorically fits within generic federal definition corresponding aggravated felony citing taylor generic mean offenses must viewed abstract see whether state statute shares nature federal offense serves point comparison accordingly state offense categorical match generic federal offense conviction state offense involved facts equating generic federal offense shepard plurality opinion whether noncitizen actual conduct involved facts quite irrelevant ex rel guarino uhl hand examine state conviction necessarily involved facts underlying case must presume conviction rested upon nothing least th acts criminalized determine whether even acts encompassed generic federal offense johnson see guarino rule without qualification first cases addressed state statutes contain several different crimes described separately held may determine particular offense noncitizen convicted examining charging document jury instructions case guilty plea plea agreement plea colloquy comparable judicial record factual basis plea nijhawan quoting shepard second focus minimum conduct criminalized state statute invitation apply legal imagination state offense must realistic probability theoretical possibility state apply statute conduct falls outside generic definition crime categorical approach long pedigree nation immigration law see das immigration penalties criminal convictions resurrecting categorical analysis immigration law rev tracing judicial decisions back reason ina asks offense noncitizen convicted iii acts committed onviction relevant statutory hook holder slip see ex rel mylius uhl aggravated felony issue illicit trafficking controlled substance generic crim nijhawan categorical approach applies ibid explained supra aggravated felony encompasses state offenses proscrib conduct punishable felony csa lopez words satisfy categorical approach state drug offense must meet two conditions must necessarily proscribe conduct offense csa csa must necessarily prescribe felony punishment conduct moncrieffe convicted georgia statute makes crime possess one control manufacture deliver distribute dispense administer purchase sell possess intent distribute marijuana code ann know plea agreement moncrieffe convicted last offenses app brief petitioner shepard therefore must determine whether possession marijuana intent distribute necessarily conduct punishable felony csa begin relevant conduct criminalized csa question federal crime possess intent distribute controlled substance one marijuana far state federal provisions correspond enough generically defined federal crime felony punishable controlled substances act offense csa thus must look punishment csa imposes offense section divided two subsections relevant titled unlawful acts includes offense described titled penalties subsection tells us person violates subsection shall punished depending circumstances crime type quantity controlled substance involved whether repeat offense subsection provides person commits violation subsection involving less kilograms marihuana person shall except provided paragraphs subsection sentenced term imprisonment years felon one exceptions important paragraph provides notwithstanding paragraph subsection person violates subsection section distributing small amount marihuana remuneration shall treated simple drug possessor purposes means dovetailing provisions create two mutually exclusive categories punishment csa marijuana distribution offenses one felony one way know whether marijuana distribution offense punishable felony csa lopez know whether conditions described paragraph present absent conviction georgia statute sell ing marijuana example seem establish remuneration presence remuneration mean paragraph implicated thus conviction necessarily conduct punishable felony csa paragraph contrast fact conviction possession intent distribute marijuana standing alone reveal whether either remuneration small amount marijuana involved possible neither know georgia prosecutes offense defendant possesses small amount marijuana see taylor state app grams distribution require remuneration see hadden state app moncrieffe conviction correspond either csa felony csa misdemeanor ambiguity point means conviction necessarily involve facts correspond offense punishable felony csa categorical approach moncrieffe convicted aggravated felony iii government advances different approach leads different result view misdemeanor provision irrelevant categorical analysis paragraph merely mitigating exception csa offense one elements offense brief respondent possession intent distribute marijuana presumptive ly felony csa government asserts state offense elements presumptively aggravated felony two contentions related reject first government reads cases hold categorical approach concerned elements offense relevant categorical analysis enough satisfy categorical inquiry government suggests elements moncrieffe georgia offense csa offense possession marijuana controlled substance intent distribute understanding inconsistent decision address elements sentencing factors recognized congress chosen define generic federal offense reference punishment may necessary take account federal sentencing factors see slip case relevant csa offense simple possession becomes punishable csa sentencing factor recidivism authorizes additional punishment beyond one year criterion felony scalia concurring judgment slip therefore called generic federal offense recidivist simple possession even though crime actually separate offense csa rather offense elements sentencing factors majority opinion slip words must state offense conviction meet elements generic federal offense defined ina csa must punish offense felony facts giving rise csa offense establish crime may either felony misdemeanor depending upon presence absence certain factors elements crime qualify aggravated felony conviction predicate offense must necessarily establish factors well government attempts distinguish ground sentencing factor narrow aggravating exception turned misdemeanor felony whereas narrow mitigation exception turns felony misdemeanor brief respondent argument hinges upon government second assertion marijuana distribution conviction presumptively felony simply incorrect government argument collapses result marijuana distribution neither felony misdemeanor know whether conditions paragraph attach section makes crime punishable five years imprisonment except provided paragraph makes punishable misdemeanor otwithstanding paragraph small amount marihuana remuneration involved emphasis added csa text makes neither provision default rather drafted exclusive like bia fifth circuit government believes felony provision default practice federal criminal prosecutions marijuana distribution operate see matter aruna brief respondent true every appeals considered question held defendant eligible sentence government proves possessed marijuana intent distribute government need negate factors case see outen describing mitigating exception hamlin collecting cases instead burden defendant show qualifies lesser sentence cf discount text however creates default punishment favor procedural overlay burdens proof apply hypothetical federal criminal prosecution rejected fifth circuit approach examined whether conduct punished felony prosecuted federal slip outcome hypothetical prosecution relevant inquiry rather focused categorical inquiry whether record conviction predicate offense necessarily establishes conduct csa terms makes punishable felony slip analogy federal prosecution misplaced another reason appeals cases government cites distinguished elements sentencing factors determine facts must proved jury light sixth amendment concerns addressed apprendi new jersey courts considered provision complete crime upon fewest facts outen significant apprendi identify jury find defendant receive maximum sentence concerns apply context consider generic federal offense abstract actual federal offense prosecuted jury concern facts csa relies upon distinguish felonies misdemeanors facts must found jury opposed judge burden proving facts federal differences made clear purposes ina generic federal offense may defined reference traditional sense sentencing factors slip see also scalia concurring judgment slip describing generic federal offense controlled substances act felony indeed distinction elements sentencing factors exist congress added illicit drug trafficking list aggravated felonies abuse act stat courts time understood contain sentencing factors draw line felony misdemeanor see campuzano controls finally fundamental flaw government approach render even undisputed misdemeanor aggravated felony english language tells us expect leaves us wary government position lopez consider conviction new york statute provides person guilty criminal sale marihuana fifth degree knowingly unlawfully sells without consideration marihuana aggregate weight two grams less one cigarette containing marihuana penal law ann west emphasis added statute criminalizes distribution small amount marijuana remuneration convictions statute fit within csa misdemeanor provision government categorically deem conviction statute aggravated felony statute contains corresponding elements distributing marijuana government believes marijuana distribution offenses punishable felonies anomaly result case noncitizen convicted misdemeanor federal directly even case government logic need treat federal misdemeanor conviction aggravated felony conviction establishes elements offense presumptively felony imagine congress took trouble incorporate statutory scheme felonies misdemeanors courts presume felony treatment ignore factors distinguish felonies misdemeanors lopez recognizing approach leads consequences congress intended government hedges argument proposing remedy noncitizens given opportunity immigration proceedings demonstrate predicate marijuana distribution convictions involved small amount marijuana remuneration federal criminal defendant sentencing brief respondent procedure adopted bia matter castro rodriguez endorsed justice alito dissent post solution entirely inconsistent ina text categorical approach noted relevant ina provisions ask noncitizen convicted inquiry immigration proceedings limited accordingly iii see slip government cites statutory authority factfinding immigration none apparent ina indeed government main categorical argument seem preclude inquiry government correct fact conviction alone constitutes csa felony brief respondent marijuana distribution convictions categorically convictions drug trafficking aggravated felony mandatory deportation follow statute room government factfinding procedure government ways moreover procedure government envisions require precisely sort post hoc investigation facts predicate offenses long deemed undesirable categorical approach serves practical purposes promotes judicial administrative efficiency precluding relitigation past convictions minitrials conducted long fact chambers see also mylius yet government approach nation overburdened immigration courts entertain weigh testimony example friend noncitizen may shared marijuana cigarette party local police officer recalls contrary cash traded hands result two noncitizens convicted offense might obtain different aggravated felony determinations depending evidence remains available perceived individual immigration judge categorical approach designed avoid potential unfairness taylor see also mylius furthermore minitrials government proposes possible noncitizen locate witnesses years fact notwithstanding removal proceedings noncitizens guaranteed legal representation often subject mandatory detention little ability collect evidence see katzmann legal profession unmet needs immigrant poor geo legal ethics brief national immigrant justice center et al amici curiae brief immigration law professors amici curiae noncitizen removal proceedings similarly situated defendant federal criminal prosecution government suggestion csa procedures readily replicated immigration proceedings therefore misplaced cf slip rejecting government argument procedures governing determination recidivism sentencing factor satisfied immigration proceeding government defends proposed immigration proceedings subsequent step outside categorical approach light section nature brief respondent argument rests upon nijhawan considered another aggravated felony offense involves fraud deceit loss victim victims exceeds held threshold applied categorically required component generic offense instead called approach allows examination immigration particular circumstances offender committed crime particular occasion nijhawan government suggests factors like monetary threshold thus similarly amenable inquiry explained nijhawan however unlike provision illicit trafficking controlled substance generic crim categorical approach applies provision see also slip distinction evident structure ina monetary threshold limitation written ina scope aggravated felony fraud monetary threshold set words calls examination conduct involved commission offense conviction nijhawan locating exception ina proper suggests intent relevant facts found immigration proceedings ina incorporates criminal statutes wholesale held must refer generic crimes categorical approach applies finally government suggests immigration task daunting cases noncitizen convicted new york statute previously discussed convicted directly true cases record conviction might reveal face predicate offense punishable misdemeanor offenses social sharing marijuana minitrials concerning convictions georgia government suggests even record conviction may often address factors noncitizens advised immigration consequences conviction defense counsel required padilla kentucky result counsel build appropriate record facts fresh brief respondent even assuming defense counsel something simply required effective counsel assumption experience always bear argument unavailing reason believe state courts regularly uniformly admit evidence going facts remuneration irrelevant offense charged short avoid absurd consequences flow government narrow understanding categorical approach government proposes solution largely undermines categorical approach cure worse disease suggests government simply wrong government fears consequences decision concerns exaggerated government observes like georgia half criminalize marijuana distribution statutes require remuneration minimum quantity marijuana result government contends noncitizens convicted marijuana distribution offenses avoid aggravated felony determinations purely convictions resolve whether offenses involved federal felony conduct misdemeanor conduct even though many prosecutions involve either remuneration larger amounts marijuana escaping aggravated felony treatment mean escaping deportation though means avoiding mandatory removal see slip marijuana distribution offense even misdemeanor still render noncitizen deportable controlled substances offender point found aggravated felon noncitizen may seek relief removal asylum cancellation removal assuming satisfies eligibility criteria forms relief discretionary attorney general may discretion deny relief finds noncitizen actually member one world dangerous drug cartels post opinion alito may deny relief concludes negative equities outweigh positive equities noncitizen case reasons result extent rejection government broad understanding scope felony may practical effect policing nation borders limited one slip event serious drug traffickers may adjudicated aggravated felons regardless likely convicted greater trafficking offenses necessarily establish small amount marijuana involved see code ann supp separate provision trafficking pounds marijuana course offenders conduct fall conduct serious conduct required trigger trafficking statute brief respondent offenders may avoid aggravated felony status operation categorical approach government objection underinclusive result little attack categorical approach prefer degree imperfection heavy burden relitigating old prosecutions see supra err side underinclusiveness ambiguity criminal statutes referenced ina must construed noncitizen favor see slip leocal ashcroft finally government suggests holding frustrate enforcement aggravated felony provisions like refers federal firearms statute contains exception antique firearm government fears conviction state firearms law lacks exception deemed fail categorical inquiry requires realistic probability theoretical possibility state apply statute conduct falls outside generic definition crime defeat categorical comparison manner noncitizen demonstrate state actually prosecutes relevant offense cases involving antique firearms government points makes passport fraud aggravated felony except noncitizen shows committed offense assist immediate family member exception provided ina held nijhawan inquiry apply provision comparable third time seven years considered whether government properly characterized drug offense illicit trafficking controlled substance thus aggravated felony hold government approach defies terms slip quoting lopez sharing small amount marijuana remuneration let alone possession intent fit easily trafficking means sort commercial dealing slip quoting lopez sensible state statute criminalizes conduct csa treats misdemeanor designated aggravated felony hold may noncitizen conviction marijuana distribution offense fails establish offense involved either remuneration small amount marijuana conviction aggravated felony ina contrary judgment appeals reversed case remanded proceedings consistent opinion ordered thomas dissenting adrian moncrieffe petitioner eric holder attorney general writ certiorari appeals fifth circuit april justice thomas dissenting plain reading identifies two requirements must satisfied state offense qualify felony punishable controlled substances act csa first offense must felony second offense must capable punishment csa lopez gonzales thomas dissenting moncrieffe offense marijuana intent distribute satisfies elements one disputes georgia punishes moncrieffe offense felony see code ann supp except otherwise provided subsection code section code section person violates subsection shall guilty felony upon conviction thereof shall punished imprisonment less one year ten years offense punishable csa involved possess ion intent manufacture distribute dispense controlled substance accordingly moncrieffe offense drug trafficking crime constitutes aggravated felony immigration nationality act ina rejected plain meaning lopez defendant convicted state felony offense misdemeanor csa held offense constitute punishable csa punishable felony federal law quoting emphasis added dissented lopez warned inquiry whether state offense constitute felony hypothetical federal prosecution cause significant inconsistencies explained one inconsistency arise alien defendant never convicted actual state felony subject deportation based hypothetical federal prosecution precise issue arose holder instead following logic lopez however contorted law avoid harsh result compelled decision defendant convicted crime state categorized misdemeanor offense felony csa prior conviction slip held offense constitute aggravated felony state prosecutor charged existence prior conviction thus defendant actually convicted crime punishable felony federal law slip concurring judgment explained decision inconsistent lopez defendant conduct punishable felony csa lopez wrongly decided proper reading supported result slip crime conviction misdemeanor result qualify felony punishable csa see ibid declined apply lopez unwilling apply indeed declined follow logic lopez natural end majority approach leads anomalous result undisputed federal sentencing purposes moncrieffe offense constitute federal felony unless prove distributed small amount marijuana remuneration cf outen sotomayor agreeing government mitigating exception default provision need negate factors support sentence holds purposes ina moncrieffe offense necessarily correspond federal misdemeanor regardless whether fact prove distributed small amount marijuana remuneration ante asserting neither default provision decision thus effect treating substantial number state felonies federal misdemeanors even result federal felony convictions majority notes third time seven years considered whether government properly characterized drug offense felony ante brought upon principle uniting lopez decision today appears government consistently loses continues disregard plain meaning expect types cases endlessly needlessly recur respectfully dissent alito dissenting adrian moncrieffe petitioner eric holder attorney general writ certiorari appeals fifth circuit april justice alito dissenting decision case supported language immigration nationality act ina precedents leads results congress clearly intend ina convicted certain offenses may removed country ed supp many instances attorney general acting board immigration appeals bia discretion cancel aliens convicted especially serious crimes however ineligible cancellation removal among serious crimes carry consequence illicit trafficking controlled substance holding today however drug traffickers half granted dispensation even alien convicted possessing tons marijuana intent distribute alien eligible remain country marijuana distribution major source income world dangerous drug cartels dept justice national drug intelligence center national drug threat assessment holds alien convicted participating activity may petition remain country decision also means consequences conviction illegal possession intent distribute vary radically depending state case prosecuted consider example alien arrested near border possession large supply marijuana holding alien prosecuted convicted georgia possession intent distribute eligible cancellation removal instead caught florida side line convicted florida possession intent distribute small amount marijuana remuneration covered separate statutory provision compare stat alien likely ineligible congress intended certainly text ina support result analyzing relevant ina provisions starting point provides lawful permanent resident alien subject removal may apply discretionary cancellation removal convicted aggravated felony term aggravated felony encompasses illicit tracking controlled substance including drug trafficking crime defined latter provision defines drug trafficking crime include felony punishable controlled substances act et thus felony punishable csa aggravated felony alien prior federal conviction straightforward matter determine whether conviction felony punishable csa introduces complication provision statutory definition felony applies offense described paragraph whether violation federal state law emphasis added noted statutory definition aggravated felony includes felony punishable csa therefore makes necessary determine meant state offense felony punishable csa obviously contemplates bia identify conduct associated state offense determine whether conduct supported qualifying conviction federal identifying evaluating relevant conduct question confounds analysis turning question however preliminary principles established lopez gonzales held felony status controlled federal state law result relevant conduct identified must determined whether proof conduct support felony conviction csa federal definition felony crime punishable imprisonment one year consequently proof relevant conduct support conviction csa maximum term imprisonment one year state conviction qualifies conviction felony ii brings us central question presented case determine evaluate conduct constitutes state offense one possibility conduct irrelevant elements state crime alien convicted matter called categorical approach taylor generally used approach determining whether state conviction falls within federal definition crime see section defines felony crime punishable imprisonment year element crime particular case involves use threat force read context phrase burglary ii likely refers elements statute conviction facts defendant conduct discussed also departed important ways pure categorical approach opinion case conveys impression analysis based categorical approach simply contrary pure categorical approach leads quickly conclusion petitioner georgia conviction conviction aggravated felony elements georgia offense follows knowledge possession marijuana intent code ann son state app proof elements sufficient support conviction maximum punishment offense imprisonment five years supp enough qualify felony treatment thus pure categorical approach petitioner georgia conviction qualify conviction aggravated felony render ineligible cancellation removal departs analysis provides means defendant convicted violating ed may lower maximum term imprisonment one year provision person violates distributing small amount marihuana remuneration shall treated defendant convicted simple possession defendant convicted lesser offense faces maximum punishment one year imprisonment provided defendant prior simple possession conviction supp reading provision together proceeds csa created offense base offense punishable misdemeanor offense possession intent distribute small amount possession intent distribute remuneration punishable felony csa actually created offense pure categorical approach lead conclusion petitioner georgia conviction aggravated felony elements georgia offense suffice prove offense require proof petitioner possessed small amount marijuana intended obtain remuneration distribution instead proof elements georgia crime merely establish violation base offense misdemeanor csa however contain provision alter elements offense notes every appeals consider question held default offense mitigating sentencing guideline see outen sotomayor describing mitigating exception hamlin collecting cases disagree ante confirmation interpretation provided use term small amount meant alter elements congress surely used vague term due process requires elements criminal statute defined specificity connally general constr accordingly apparent modify elements instead constitutes essence mandatory sentencing guideline provision defendant convicted violating defendant may attempt prove possessed small amount marijuana intend obtain remuneration distribution defendant succeeds convincing sentencing judge maximum term imprisonment lowered one year sum contrary impression opinion seeks convey analysis follow pure categorical approach iii analysis supported prior case law claims approach follows decision holder case unlike opinion faithfully pure categorical approach alien convicted texas simple possession controlled substance slip time conviction prior state conviction simple possession fact charged proved trial apparently taken account setting sentence days jail slip arguing ineligible cancellation removal government maintained second possession conviction qualified ina conviction aggravated felony slip government contended second prosecution held federal punished sentence two years due prior simple possession conviction slip severe sentence however required federal prosecutor file formal charge alleging prior conviction given opportunity defend charge heightened sentence imposed unless found prior conviction occurred slip rejection government argument thus represented straightforward application pure categorical approach elements texas offense convicted knowledge intent possession controlled substance without prescription nothing slip tex health safety code ann west proof prior simple possession conviction required proof appears offered maximum penalty imposed federal law simple possession without proof prior simple possession conviction one year imprisonment thus proof federal elements texas offense permitted sentence consequently state conviction qualify felony punishable csa iv unsupported either categorical approach prior cases decision rests instead belief share application pure categorical approach case lead results congress surely intend suppose alien found possess two marijuana cigarettes convicted state possession intent distribute based evidence give one cigarettes friend pure categorical approach alien regarded committed aggravated felony classification plainly step csa assessment severity alien crime csa alien obtain treatment misdemeanant taking advantage reason agree alien treated committed aggravated felony order avoid result however necessary depart categorical approach done particular way departed little recommend begin approach analytically confused already discussed treats modified elements fact thing obviously knows suggest changes elements criminal law addition approach leads strange disruptive results noted beginning opinion initial matter leads major drug crimes half excluded category illicit trafficking controlled substance moreover leads significant disparities equally culpable defendants adopted categorical avoid disparities treatment defendants convicted different committing criminal conduct see taylor rejecting view state law determined meaning burglary hat mean person convicted unlawful possession firearm receive sentence enhancement based exactly conduct depending whether state prior conviction happened call conduct yet reintroduces significant disparity treatment drug offenders avoided candidly acknowledging categorical approach congress wishes make federal law dependent certain prior state convictions faces difficult task ina provisions discussed confront problem clear objective identify categories criminal conduct evidence high degree societal danger alien found engaged conduct allowed obtain permission remain country since vast majority crimes prosecuted state courts congress naturally looked state well federal convictions metric identifying dangerous aliens state criminal codes vary widely state crimes defined broadly encompass serious much less serious cases cases involving state provisions pure categorical approach may frustrate congress objective said categorical approach finds support term conviction taylor supra shepard never held pure categorical approach dictated use think ordinary speech said person convicted something something may include facts go beyond bare elements relevant criminal offense example might said art thief convicted stealing rembrandt oil painting even though neither identity artist medium used painting elements standard offense larceny see lafave substantive criminal law ed reasons departures categorical approach warranted already sanctioned departures several circumstances see taylor supra modified categorical approach gonzales categorical approach exclude convictions unless realistic probability theoretical possibility state apply statute conduct falls outside generic definition crime nijhawan holder interpreting enumerated aggravated felony generic crime consistent flexibility already recognized hold categorical approach controlling state conviction issue based state statute encompasses substantial number cases qualify federal standard substantial number situations appropriate look beyond elements state offense rely well facts admitted state taking realistic view clearly proved look beyond elements particularly appropriate case like involves civil proceeding expert agency regularly undertakes factual inquiries far daunting involved see negusie holder applying approach present case find georgia statute petitioner convicted broadly encompasses relatively minor offenses possession small amount marijuana intent share serious crimes possession intent distribute large amounts marijuana exchange millions dollars profit also find petitioner opportunity bia show criminal conduct fell category relatively minor offenses carved administrative record bia takes entirely sensible view alien convicted possession intent distribute may show conviction aggravated felony proving conduct fell within matter petitioner whatever reason availed opportunity show conviction involved small amount marijuana present evidence even contend offense involved remuneration administrative record result think alternative affirm decision appeals turn affirmed bia footnotes addition asylum noncitizen fears persecution may seek withholding removal deferral removal convention torture cruel inhuman degrading treatment punishment cat art treaty doc cfr forms relief require noncitizen show greater likelihood persecution torture home necessary asylum attorney general discretion deny relief noncitizen establishes eligibility conviction aggravated felony effect cat eligibility render noncitizen ineligible withholding removal sentenced aggregate term imprisonment least years aggravated felonies parties agree resolution moncrieffe georgia case nevertheless conviction ina defines term see brief petitioner brief respondent compare case garcia holder aggravated felony julce mukasey martinez mukasey aggravated felony wilson ashcroft construed different provision ina concerns cancellation removal also requires determining whether noncitizen convicted aggravated felony emphasis added analysis contexts full provides except authorized subchapter shall unlawful person knowingly intentionally manufacture distribute dispense possess intent manufacture distribute dispense controlled substance pertinent part ed supp provide except otherwise provided section title person violates subsection section shall sentenced follows case less kilograms marihuana except case marihuana plants regardless weight kilograms hashish one kilogram hashish oil person shall except provided paragraphs subsection sentenced term imprisonment years fine exceed greater authorized accordance provisions title defendant individual defendant individual notwithstanding paragraph subsection person violates subsection section distributing small amount marihuana remuneration shall treated provided section title section title although paragraph speaks distributing marijuana parties agree also applies inchoate offense possession intent distribute drug matter castro rodriguez bia see brief petitioner brief respondent csa define small amount bia suggested grams serve useful guidepost castro rodriguez noting ina exempts deportable controlled substances offenses single offense involving possession one use grams less marijuana meaning small amount issue case need define term justice alito statute obviously requires examination whether conduct associated state offense supported qualifying conviction federal csa post dissenting opinion emphasis added see also post echoes fifth circuit approach noted text opinion explicitly rejected reasoning based conditional perfect formulations see also slip criticizing approach focuses facts known immigration serve basis state conviction punishment emphasis altered instead explained supra holding depended upon fact conviction establish fact necessary distinguish misdemeanor felony punishment csa true government also cites provides government need negative exemption exception set forth csa instead burden going forward evidence respect exemption exception shall upon person claiming benefit brief respondent even assuming exception applies terms trial hearing proceeding csa rather different proceedings ina addition new york appears separate offenses conduct see cal health safety code ann west supp rev stat ann stat comp ch west iowa code stat stat ann supp ohio rev code ann lexis cum supp rev stat stat tit purdon supp codified laws supp tex health safety code ann west code ann lexis similarly justice alito dissent suggests disagrees first premises categorical approach says strange disruptive resul defendants convicted different committing criminal conduct might suffer different collateral consequences depending upon define statutes conviction post yet longstanding natural result categorical approach focuses criminal conduct defendant commit rather facts necessarily established conviction state offense different state offenses necessarily establish different facts track uniform federal definition generic offense taylor whatever disparity may create defendants whose conduct ensures defendants whose convictions establish facts treated consistently thus predictably federal law taylor chief concern adopting categorical approach see footnotes section supp increases punishment trafficking marijuana decreases punishment simple possession ounce less marijuana neither provision applicable moncrieffe offense possession intent distribute correctly points moncrieffe sentenced offender ante provision alter felony status offense rather gives courts discretion impose probation instead imprisonment without entering conviction majority recognizes petitioner waived argument convicted immigration nationality act ante see iii providing aliens convicted aggravated felony admission deportable providing aliens convicted aggravated felony ineligible cancellation removal defining aggravated felony illicit trafficking controlled substance including drug trafficking crime defined defining drug trafficking crime felony punishable csa footnotes alien term used relevant provisions immigration nationality act term encompass noncitizens compare defining alien include person citizen national defining national see also miller albright ginsburg dissenting disagreement proposition ante difficult understand quite plainly suggests held state conviction qualify aggravated felony must determine meant state felony punishable csa way identifying set relevant conduct asking whether based conduct alien felony prosecuted csa federal referred hypothetical approach addressing entirely different question specifically set conduct relevant holder slip held relevant set conduct consisted fact charged proved proceeding set conduct proved hypothetical federal proceeding defends interpretation arguing holder recourse hypothetical approach determining criminal prosecution likely proceeded see ante true enough discussed see supra categorical approach require conjecture whether hypothetical federal prosecutor likely charge prove prior conviction mean also precludes analysis structure federal criminal statute hand indeed cases done little else see supra slip discussing procedural protections enjoyed prosecuted federally gonzales term theft offense includes crime aiding abetting theft offense instead adopted categorical approach based combination factors including judicial efficiency see taylor practical difficulties potential unfairness factual approach daunting cases government alleges defendant actual conduct fit generic definition burglary trial determine conduct