The Supreme Court in Mellouli v. Holder (June 1, 2015) decided when a state drug-paraphernalia conviction sufficiently “relates to” a substance listed under the Controlled Substances Act to justify removing a permanent U.S. resident under the Immigration and Nationality Act. Moones Mellouli argued that, even though Adderall is a federally-controlled substance, his deportation was impermissible because his state conviction record did not identify the substance found in his drug paraphernalia and thus did not relate to a federally-controlled substance. Mellouli v. Lynch, 2015 WL 2464047 (U.S. June 1, 2015).
The United States Supreme Court ruled that the federal government went too far in seeking to deport immigrants for certain low-level drug-related offenses. Moones Mellouli, a legal permanent resident and math teacher originally from Tunisia, was deported after pleading guilty in Kansas state court to possessing drug paraphernalia — a sock. The 7-2 decision in his favor, Mellouli v. Lynch, marks the fourth time in the past decade that the Court has rejected the federal government’s broad application of immigration laws to drug offenses.
Despite changing views of drug use as a public health matter rather than a criminal concern and growing consensus around the failure of the War on Drugs, the U.S. government has made noncitizens with drug convictions, including longtime residents, one of the top targets of its mass deportation program. Immigration and Customs Enforcement (ICE) has deported nearly a quarter of a million people for drug offenses over the past six years, including, in 2013 alone, nearly 20,000 for simple possession and more than 6,000 for personal marijuana possession.
To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act. A non-citizen’s state conviction for concealing unnamed pills in his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”
Background: Petitioner Moones Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance.” Kan. Stat. Ann. §21–5709(b)(2). The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing Mellouli’s misdemeanor conviction, an Immigration Judge ordered him deported under 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Section 802, in turn, limits the term “controlled substance” to a “drug or other substance” included in one of five federal schedules. 21 U. S. C. §802(6). Kansas defines “controlled substance” as any drug included on its own schedules, without reference to §802. Kan. Stat. Ann. §21–5701(a). At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals (BIA) affirmed Mellouli’s deportation order, and the Eighth Circuit denied his petition for review.
Held: Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). Pp. 5–14.
(a) The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if,by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now” “§1227(a)(2)(B)(i). Matter of Paulus, 11 I. & N. Dec. 274, is illustrative. At the time the BIA decided Paulus, California controlled certain “narcotics” not listed as “narcotic drugs” under federal law. Id., at 275. The BIA concluded that an alien’s California conviction for offering to sell an unidentified “narcotic” was not a deportable offense, for it was possible that the conviction involved a substance controlled only under California, not federal, law. Under the Paulus analysis, Mellouli would not be deportable. The state law involved in Mellouli’s conviction, like the California statute in Paulus, was not confined to federally controlled substances; it also included substances controlled only under state, not federal, law.”
“The BIA, however, announced and applied a different approach to drug-paraphernalia offenses (as distinguished from drug possession and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N. Dec. 118. There, the BIA ranked paraphernalia statutes as relating to “the drug trade in general,” reasoning that a paraphernalia conviction “relates to” any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Id., at 120–121. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in §802.”
“The BIA’s disparate approach to drug possession and distribution offenses and paraphernalia possession offenses finds no home in” “§1227(a)(2)(B)(i)’s text and “leads to consequences Congress could not have intended.” Moncrieffe v. Holder, 569 U. S., . That approach has the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation is owed no deference under the doctrine described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 5–””11.”
“(b) The Government’s interpretation of the statute is similarly flawed. The Government argues that aliens who commit any drug crime, not just paraphernalia offenses, in States whose drug sched- ules substantially overlap the federal schedules are deportable, for “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” Brief for Respondent 17. While the words “relating to” are broad, the Government’s reading stretches the construction of §1227(a)(2)(B)(i) to the breaking point, reaching state-“court convictions, like Mellouli’s, in which “[no] controlled substance(as defined in [§802])” figures as an element of the offense. Construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits themeaning of “controlled substance,” for removal purposes, to the substances controlled under §802. Accordingly, to trigger removal under§1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].” Pp. 11–14.719 F. 3d 995, reversed.”
8 U.S.C. § 1227(a), also known as section 237(a) of the Immigration and Nationality Act (“INA”), outlines the classes of lawful aliens in the U.S. who may be deported from the country. Section 1227(a) specifically allows for the deportation of “any alien who at any time after admission [to the U.S.] has been convicted of a violation . . . of any law or regulation of a State, the United States, or any foreign country relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” For purposes of federal law, § 802 of the Controlled Substances Act (“CSA”) defines the term “controlled substance.”
In April 2010, Moones Mellouli, a citizen of Tunisia and a permanent resident of the United States, was arrested in Kansas for driving under the influence of alcohol. During his detention, officers found four orange tablets in Mellouli’s sock. The tablets were Adderall, a substance listed on the Kansas and U.S. Federal controlled substance schedules. Mellouli pled guilty to the charge of misdemeanor possession of drug paraphernalia (his sock) in violation of Kansas state law.
Mellouli argued that his Kansas drug-paraphernalia conviction does not fall within § 1227(a)(2)(B)(i) without a showing that the paraphernalia (his sock) is connected to a federally controlled substance outlined in § 802. Mellouli’s amended complaint to the Board of Immigration Appeals (“BIA”) did not identify the tablets found in his sock as Adderall. While Adderall is a substance on both the Kansas and U.S. controlled substance schedules, Mellouli’s conviction record from Kansas also did not specifically identify the substance found in his sock as Adderall. Thus, Mellouli claimed that there was a possibility that his Kansas drug-paraphernalia conviction does not involve a substance on the federal schedule. In other words, Mellouli argued that the government could not show that his drug paraphernalia conviction for the sock under Kansas law was connected to his possession of Adderall, which would be considered a federal offense that could result in deportation under § 1227(a).
Finding against Melloui, the BIA “concluded that Melloui’s conviction for drug paraphernalia involves drug trade in general and, thus, is covered under 8 U.S.C. ¶ 1227(a)(2)(B)(i).” The Eighth Circuit Court of Appeals agreed, finding that Mellouli’s drug paraphernalia conviction rendered him deportable under § 1227(a)(2)(B)(i). The Eighth Circuit reasoned that the BIA was correct in its reading of the phrase “relating to” when determining that Mellouli’s drug paraphernalia conviction related to the possession of a federally controlled substance. The court determined that Congress intended “to broaden the reach of the removal provision to include state offenses having a ‘logical or causal’ connection to federal controlled substances.”
The U.S. Supreme Court in Mellouli v. Lynch, 2015 WL 2464047 (U.S. June 1, 2015), held, in a 7-2 decision, that the petitioner’s state court conviction for concealing unnamed pills in his sock did not trigger removal under INA § 237(a)(2)(B)(i) [8 USCA § 1227(a)(2)(B)(i)], which provides that a noncitizen may be removed if he or she has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) … ” (emphasis added). The Court rejected the argument that any drug offense renders an alien removable without regard to the appearance of the drug on a §802 schedule and found that to trigger removal under § 1227(a)(2)(B)(i), the government must connect an element of the alien’s conviction to a drug defined in § 802. In so holding, the Court reversed a decision by the U.S. Court of Appeals for the Eighth Circuit, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), in which that court held that it was reasonable for the Board of Immigration Appeals (BIA or Board) to conclude that any Kansas conviction for misdemeanor possession of drug paraphernalia was categorically a violation of a law relating to a controlled substance within the meaning of § 1227(a)(2)(B)(i).
The petitioner in Mellouli entered the U.S. in 2004 as a student and later adjusted his status to that of a lawful permanent resident. In 2010, he was detained for driving under the influence and later charged with the Kansas state felony offense of “trafficking in contraband in a jail” after he was found with four tablets of Adderall. This charge was subsequently amended to a misdemeanor crime of “possession of drug paraphernalia” involving a sock used “to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance” in violation of Kan. Stat. Ann. § 21-36a09 (now Kan. Stat. Ann. § 21-5709(b)(2)). The amended charge did not reference a particular substance. Mellouli pled guilty in July 2010 to the amended charge and was sentenced to 359 days in jail unimposed with 12 months of probation. In February 2012, he was charged with removability under 8 USCA § 1227(a)(2)(B)(i). The conviction documents submitted in the immigration proceedings did not specify the controlled substance involved. The immigration judge found that the government did not need to identify the controlled substance at issue to establish that Mellouli was convicted of a crime encompassed by 8 USCA § 1227(a)(2)(B)(i). The BIA affirmed, finding that a conviction for possession of drug paraphernalia involves drug trade in general and, thus, is covered under § 1227(a)(2)(B)(i).
Mellouli petitioned the Eighth Circuit for review, arguing that the government failed to meet its burden to prove that he was convicted of violating a law related to a controlled substance as defined by 21 USCA § 802, because (1) the record of conviction did not specify the substance associated with the paraphernalia, (2) the paraphernalia–a sock–lacked connection with any particular substance, and (3) Kansas law includes substances that are not included on the federal controlled substance list. The government argued that Mellouli’s conviction under the Kansas statutory scheme undoubtedly involved “the drug trade in general, and that is all that is needed to establish that his possession of drug paraphernalia conviction is a violation of a state law relating to a controlled substance.” In response to Mellouli’s argument that, as his Kansas state court record of conviction did not identify the controlled substance underlying his paraphernalia conviction, the government failed to prove that the conviction related to a federal controlled substance, the Eighth Circuit recognized that this question is not free from doubt, citing to the contrasting decisions in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Nijhawan v. Holder, 557 U.S. 29 (2009). Nevertheless, it held that it was reasonable for the BIA to conclude that any Kansas conviction for misdemeanor possession of drug paraphernalia was categorically a violation of a law relating to a controlled substance within the meaning of 8 USCA § 1227(a)(2)(B)(i).
The Supreme Court’s decision reversing the Eighth Circuit’s decision was written by Justice Ruth Bader Ginsburg and joined by Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas authored a dissenting opinion joined by Justice Samuel Anthony Alito, Jr. Preliminarily, Justice Ginsburg explained that under federal law, Mellouli’s concealment of controlled-substance tablets in his sock would not have qualified as a drug-paraphernalia offense. Federal law, she pointed out, criminalizes the sale of or commerce in drug paraphernalia, but possession alone is not criminalized at all, and federal law does not define drug paraphernalia to include common household or ready-to-wear items like socks; rather, it defines paraphernalia as any “equipment, product, or material” which is “primarily intended or designed for use” in connection with various drug-related activities (emphasis added by the Court). Further, she noted that in 19 states the conduct for which Mellouli was convicted–use of a sock to conceal a controlled substance–is not a criminal offense. Justice Ginsburg then discussed the categorical approach to determining whether a state conviction renders an alien removable under the INA.
Justice Ginsburg went on to review BIA decisions interpreting successive versions of the removal statute under which drug possession and distribution convictions trigger removal only if they necessarily involve a federally controlled substance, citing Matter of Fong, 10 I. & N. Dec. 616, 619 (B.I.A. 1964), Matter of Paulus, 11 I. & N. Dec. 274 (B.I.A. 1965), and Matter of Ferreira, 26 I. & N. Dec. 415 (B.I.A. 2014), while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance, citing Matter of Espinoza, 25 I. & N. Dec. 118 (B.I.A. 2009), [FN6] the decision that the immigration judge in Mellouli’s case relied upon in ordering Mellouli removed. She found that this disparate approach to state drug convictions, devised by the BIA and applied by the Eighth Circuit, “finds no home in the text of § 1227(a)(2)(B)(i)” and “leads to consequences Congress could not have intended.” She pointed out that the incongruous result of this disparate approach is that an alien is not removable for possessing a substance controlled only under Kansas law but is removable for using a sock to contain that substance. Because this “makes scant sense,” the Court held that the BIA’s interpretation was owed no deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
Finally, the Court rejected the government’s and the dissent’s argument that the overlap between state and federal drug schedules supports the removal of aliens convicted of any drug crime, not just paraphernalia offenses because the words “relating to” in § 1227(a)(2)(B)(i) modify “law or regulation” rather than “violation” so that aliens who commit “drug crimes” in states whose drug schedules substantially overlap the federal schedules are removable because “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” The Court found that this interpretation “stretches to the breaking point, reaching state-court convictions, like Mellouli’s, in which ‘[no] controlled substance (as defined in [§ 802])’ figures as an element of the offense” and that context must tug in favor of a narrower reading, citing Yates v. U.S., 135 S. Ct. 1074 (2015). In conclusion, the majority said:
[C]onstruction of § 1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance,” for removal purposes, to the substances controlled under § 802. We therefore reject the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a § 802 schedule. Instead, to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§ 802].”
Accordingly, the Eighth Circuit’s decision was reversed.
In dissenting, Justices Thomas and Alito opined that the statutory text clearly indicates that it renders an alien removable whenever he or she is convicted of violating a law “relating to” a federally controlled substance, which they found the Kansas statute clearly does. This is so, they contend, regardless of whether the particular conduct would also subject the alien to prosecution under federal controlled-substantive laws. In ordinary parlance, Justice Thomas wrote, one thing can “relate to” another even if it also relates to other things so that, as ordinarily understood, a state law regulating various controlled substances may “relat[e] to a controlled substance (as defined in section 802 of title 21)” even if the statute also controls a few substances that do not fall within the federal definition.
Justice Ginsburg, however, retorted in footnote 9 to her opinion that, although the dissent maintains that it is simply following “the statutory text,” it shrinks to the vanishing point the words “as defined in [§ 802].” If § 1227(a)(2)(B)(i) stopped with the words “relating to a controlled substance,” she opined, the dissent would make sense, but, she said, Congress did not stop there. Instead it qualified “relating to a controlled substance” by adding the limitation “as defined in [§ 802].” She concluded, “If those words do not confine § 1227(a)(2)(B)(i)’s application to drugs defined in § 802, one can only wonder why Congress put them there.”
