SCOTUS affirms jurisdiction to decide equitable tolling of statutory time limit to file a motion to reopen a removal proceeding

Posted on June 15, 2015 by Mike Baker

Issue: Whether the Fifth Circuit erred in holding that it had no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably tolled the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

This case opens the door to immigrants whose cases were damaged by their lawyers’ ineffective assistance of counsel and the 90-day time limitation to file a Motion to Reopen removal proceedings has passed. The time begins to run when a noncitizen learns about the harm done, even if discovery comes after the 90-day limitation to file a Motion to Reopen the removal proceeding based on ineffective assistance of counsel.

After Mata, an unlawful alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed notice of appeal with the Board of Immigration Appeals (BIA), but never filed a brief; the appeal was dismissed. Acting through different counsel, Mata moved to reopen his removal proceedings, 8 U.S.C. 229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling. The BIA dismissed the motion as untimely and declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. The Fifth Circuit construed Mata’s equitable tolling claim as a request that the BIA exercise its regulatory authority to reopen the proceedings sua sponte, and, because its precedent forbids review of BIA decisions not to exercise that authority, dismissed for lack of jurisdiction. The Supreme Court reversed. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Nothing about that jurisdiction changes where the BIA rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit, or when the denial also contains a separate decision not to exercise its sua sponte authority. If Mata is not entitled to relief on the merits, the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. A federal court has a “virtually unflagging obligation” to assert jurisdiction where it has that authority; recharacterizing pleadings cannot be used to sidestep the judicial obligation to assert jurisdiction.

“An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. §1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. See Kucana v. Holder, 558 U. S. 233, 242, 253 (2010).”

“The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte.”

A federal court must assert jurisdiction when it has the authority to do so, rather than recharacterizing pleadings to avoid that obligation. Therefore, a federal court of appeals may review the Board of Immigration Appeals’ rejection of a non-citizen’s motion to reopen, even if the rejection was based on procedural grounds.

Download MATA v. LYNCH

______________________________________________________________________
NOEL REYES MATA, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL

No. 14-185.

SUPREME COURT OF THE UNITED STATES

2015 U.S. LEXIS 3919

April 29, 2015, Argued
June 15, 2015, Decided

NOTICE: This version is subject to revision.
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DISPOSITION: 558 Fed. Appx. 366, reversed and remanded.

After petitioner Noel Reyes Mata, an unlawful resident alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed a notice of appeal with the Board of Immigration Appeals (BIA or Board), but never filed a brief, and the appeal was dismissed. Acting through different counsel, Mata filed a motion to reopen his removal proceedings, as authorized by statute. See 8 U. S. C. §1229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, see §1229a(c)(7)(C)(i), Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling of the time limit. But the BIA disagreed and dismissed the motion as untimely. The BIA also declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. See 8 CFR §1003.2(a). On appeal, the Fifth Circuit construed Mata’s equitable tolling claim as an invitation for the Board to exercise its regulatory authority to reopen the proceedings sua sponte, and — because circuit precedent forbids the court to review BIA decisions not to exercise that authority — dismissed Mata’s appeal for lack of jurisdiction.

Held: The Fifth Circuit erred in declining to take jurisdiction over Mata’s appeal. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Kucana v. Holder, 558 U. S. 233, 253. Nothing about that jurisdiction changes where the Board rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit. That jurisdiction likewise remains unchanged if the BIA’s denial also contains a separate decision not to exercise its sua sponte authority. So even assuming the Fifth Circuit is correct that courts of appeals lack jurisdiction to review BIA decisions not to reopen cases sua sponte, that lack of jurisdiction does not affect jurisdiction over the decision on the alien’s motion to reopen. It thus follows that the Fifth Circuit had jurisdiction over this case.

The Fifth Circuit’s contrary decision rested on its construing Mata’s motion as an invitation for the Board to exercise its sua sponte discretion. Court-appointed amicus asserts that the Fifth Circuit’s recharacterization was based on the premise that equitable tolling in Mata’s situation is categorically forbidden. In amicus’s view, the court’s construal was therefore an example of the ordinary practice of recharacterizing a doomed request as one for relief that may be available. But even if equitable tolling is prohibited, the Fifth Circuit’s action was not justified. If Mata is not entitled to relief on the merits, then the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. For a court retains jurisdiction even if a litigant’s request for relief lacks merit, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89, and a federal court has a “virtually unflagging obligation,” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817, to assert jurisdiction where it has that authority. Nor can the established practice of recharacterizing pleadings so as to offer the possibility of relief justify an approach that, as here, renders relief impossible and sidesteps the judicial obligation to assert jurisdiction. Pp. 4-8. 558 Fed. Appx. 366, reversed and remanded.

JUDGES: KAGAN Click, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a dissenting opinion.

OPINION BY: KAGAN

OPINION

JUSTICE KAGAN Click for Enhanced Coverage Linking Searches delivered the opinion of the Court.

An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. §1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. See Kucana v. Holder, 558 U. S. 233, 242, 253 (2010). Notwithstanding that rule, the court below declined to take jurisdiction over such an appeal because the motion to reopen had been denied as untimely. We hold that was error.

I

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., and its implementing regulations set out the process for removing aliens from the country. An immigration judge (IJ) conducts the initial proceedings; if he orders removal, the alien has the opportunity to appeal that decision to the Board of Immigration Appeals (BIA or Board). §§1229a(a)(1), (c)(5). “[E]very alien ordered removed” also “has a right to file one motion” with the IJ or Board to “reopen his or her removal proceedings.” Dada v. Mukasey, 554 U. S. 1, 4-5 (2008); see §1229a(c)(7)(A). Subject to exceptions not relevant here, that motion to reopen “shall be filed within 90 days” of the final removal order. §1229a(c)(7)(C)(i). Finally, the BIA’s regulations provide that, separate and apart from acting on the alien’s motion, the BIA may reopen removal proceedings “on its own motion”—or, in Latin, sua sponte—at any time. 8 CFR §1003.2(a) (2015).

Petitioner Noel Reyes Mata is a Mexican citizen who entered the United States unlawfully almost 15 years ago. In 2010, he was convicted of assault under the Texas Penal Code. The federal Department of Homeland Security (DHS) immediately initiated removal proceedings against him, and in August 2011 an IJ ordered him removed. See App. 6-13. Mata’s lawyer then filed a notice of appeal with the BIA, indicating that he would soon submit a written brief stating grounds for reversing the IJ’s decision. But the attorney never filed the brief, and the BIA dismissed the appeal in September 2012. See App. 4-5.

More than a hundred days later, Mata (by then represented by new counsel) filed a motion with the Board to reopen his case. DHS opposed the motion, arguing in part that Mata had failed to file it, as the INA requires, within 90 days of the Board’s decision. Mata responded that the motion was “not time barred” because his first lawyer’s “ineffective assistance” counted as an “exceptional circumstance” excusing his lateness. Certified Administrative Record in No. 13-60253 (CA5, Aug. 2, 2013), p. 69. In addressing those arguments, the Board reaffirmed prior decisions holding that it had authority to equitably toll the 90-day period in certain cases involving ineffective representation. See App. to Pet. for Cert. 7; see also, e.g., In re Santa Celenia Diaz, 2009 WL 2981747 (BIA, Aug. 21, 2009). But the Board went on to determine that Mata was not entitled to equitable tolling because he could not show prejudice from his attorney’s deficient performance; accordingly, the Board found Mata’s motion untimely. See App. to Pet. for Cert. 7-8. And in closing, the Board decided as well that Mata’s case was not one “that would warrant reopening as an exercise of” its sua sponte authority. Id., at 9 (stating that “the power to reopen on our own motion is not meant to be used as a general cure for filing defects” (internal quotation marks omitted)).

Mata petitioned the Court of Appeals for the Fifth Circuit to review the BIA’s denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to “address the merits of Mata’s equitable-tolling . . . claim[ ].” Reyes Mata v. Holder, 558 Fed. Appx. 366, 367 (2014) (per curiam). It stated instead that “[i]n this circuit, an alien’s request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte.” Ibid. And circuit precedent held that courts have no jurisdiction to review the BIA’s refusal to exercise its sua sponte power to reopen cases. See ibid. The Court of Appeals thus dismissed Mata’s appeal for lack of jurisdiction.

Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. 1 We granted certiorari to resolve this conflict. 574 U. S. ___ (2015). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiae to defend the judgment below. 2 We now reverse.

FOOTNOTES

1 See, e.g., Da Silva Neves v. Holder, 613 F. 3d 30, 33 (CA1 2010) (per curiam) (exercising jurisdiction over such a petition); Iavorski v. INS, 232 F. 3d 124, 129-134 (CA2 2000) (same); Borges v. Gonzales, 402 F. 3d 398, 406 (CA3 2005) (same); Kuusk v. Holder, 732 F. 3d 302, 305-306 (CA4 2013) (same); Barry v. Mukasey, 524 F. 3d 721, 724-725 (CA6 2008) (same); Pervaiz v. Gonzales, 405 F. 3d 488, 490 (CA7 2005) (same); Hernandez-Moran v. Gonzales, 408 F. 3d 496, 499-500 (CA8 2005) (same); Valeriano v. Gonzales, 474 F. 3d 669, 673 (CA9 2007) (same); Riley v. INS, 310 F. 3d 1253, 1257-1258 (CA10 2002) (same); Avila-Santoyo v. United States Atty. Gen., 713 F. 3d 1357, 1359, 1362-1364 (CA11 2013) (per curiam) (same). Except for Da Silva Neves, which did not resolve the issue, all those decisions also held, on the merits, that the INA allows equitable tolling in certain circumstances. See infra, at 7-8. 2 We appointed William R. Peterson to brief and argue the case, 574 U. S. ___ (2015), and he has ably discharged his responsibilities.

II

As we held in Kucana v. Holder, circuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding. See 558 U. S., at 242, 253. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U. S. C. §1252(a)(1); 28 U. S. C. §2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U. S. C. §1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order”). Indeed, as we explained in Kucana, courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts’ jurisdiction over BIA rulings, it left that authority in place. See 558 U. S., at 242-251.

Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.

Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien’s statutorily authorized motion, states that it will not exercise its separate sua sponte authority to reopen the case. See supra, at 1-2. In Kucana, we declined to decide whether courts have jurisdiction to review the BIA’s use of that discretionary power. See 558 U. S., at 251, n. 18. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft, 371 F. 3d 246, 249-250 (CA5 2004); Tamenut v. Mukasey, 521 F. 3d 1000, 1003-1004 (CA8 2008) (en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board’s ruling on the alien’s motion. That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien’s request).

It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for timeliness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte.

Nonetheless, the Fifth Circuit dismissed Mata’s appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata’s motion as something it was not: “an invitation for the BIA to exercise” its sua sponte authority. 558 Fed. Appx., at 367; supra, at 3. Amicus’s defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 14-35. Given that is so, amicus continues, the court acted permissibly in “recharacteriz[ing]” Mata’s pleadings. Id., at 36. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” Id., at 35, 38. And here (amicus concludes) that meant construing Mata’s request for equitable tolling as a request for sua sponte reopening — even though that caused the Fifth Circuit to lose its jurisdiction.

But that conclusion is wrong even on the assumption—and it is only an assumption—that its core premise about equitable tolling is true. 3 If the INA precludes Mata from getting the relief he seeks, then the right course on appeal is to take jurisdiction over the case, explain why that is so, and affirm the BIA’s decision not to reopen. The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“[T]he absence of a valid . . . cause of action does not implicate subject-matter jurisdiction”). The Fifth Circuit thus retains jurisdiction even if Mata’s appeal lacks merit. And when a federal court has jurisdiction, it also has a “virtually unflagging obligation . . . to exercise” that authority. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Accordingly, the Court of Appeals should have asserted jurisdiction over Mata’s appeal and addressed the equitable tolling question.

FOOTNOTES

3 We express no opinion as to whether or when the INA allows the Board to equitably toll the 90-day period to file a motion to reopen. Moreover, we are not certain what the Fifth Circuit itself thinks about that question. Perhaps, as amicus asserts, the court believes the INA categorically precludes equitable tolling: It is hard to come up with any other reason why the court construes every argument for tolling as one for sua sponte relief. See Brief for Amicus Curiae by Invitation of the Court 2, 10, 14, n. 2. But the Fifth Circuit has stated that position in only a single sentence in a single unpublished opinion, which (according to the Circuit) has no precedential force. See Lin v. Mukasey, 286 Fed. Appx. 148, 150 (2008) (per curiam); Rule 47.5.4 (2015). And another unpublished decision cuts in the opposite direction, “hold[ing] that the doctrine of equitable tolling applies” when exceptional circumstances excuse an alien’s failure to meet the 90-day reopening deadline. See Torabi v. Gonzales, 165 Fed. Appx. 326, 331 (CA5 2006) (per curiam). So, in the end, it is hard to say.

Contrary to amicus’s view, the practice of recharacterizing pleadings so as to offer the possibility of relief cannot justify the Court of Appeals’ alternative approach. True enough (and a good thing too) that courts sometimes construe one kind of filing as another: If a litigant misbrands a motion, but could get relief under a different label, a court will often make the requisite change. See, e.g., 12 J. Moore, Moore’s Federal Practice, §59.11[4] (3 ed. 2015) (explaining how courts treat untimely Rule 59 motions as Rule 60 motions because the latter have no time limit). But that established practice does not entail sidestepping the judicial obligation to exercise jurisdiction. And it results in identifying a route to relief, not in rendering relief impossible. That makes all the difference between a court’s generously reading pleadings and a court’s construing away adjudicative authority.

And if, as amicus argues, that construal rests on an underlying merits decision — that the INA precludes any equitable tolling — then the Court of Appeals has effectively insulated a circuit split from our review. Putting the Fifth Circuit to the side, all appellate courts to have addressed the matter have held that the Board may sometimes equitably toll the time limit for an alien’s motion to reopen. See n. 1, supra. Assuming the Fifth Circuit thinks otherwise, that creates the kind of split of authority we typically think we need to resolve. See this Court’s Rule 10(a). But the Fifth Circuit’s practice of recharacterizing appeals like Mata’s as challenges to the Board’s sua sponte decisions and then declining to exercise jurisdiction over them prevents that split from coming to light. Of course, the Court of Appeals may reach whatever conclusion it thinks best as to the availability of equitable tolling; we express no opinion on that matter. See n. 3, supra. What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.

For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

DISSENT

JUSTICE THOMAS, dissenting.

The Court’s opinion in this case elides an important distinction between construing a court filing and recharacterizing it. See Castro v. United States, 540 U. S. 375, 386 (2003) (SCALIA Click for Enhanced Coverage Linking Searches, J., concurring in part and concurring in judgment) (discussing this distinction). Courts routinely construe ambiguous filings to make sense out of them, as parties — both counseled and uncounseled — sometimes submit documents lacking even rudimentary clarity. See, e.g., Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1287 (MD Ala. 2013) (“The filings and arguments made by the plaintiffs on these claims were mystifying at best”). Recharacterization is something very different: It occurs when a court treats an unambiguous filing as something it is not. That practice is an unusual one, and should be used, if at all, with caution. See Castro, 540 U. S., at 385-386 (opinion of SCALIA Click for Enhanced Coverage Linking Searches, J.). Courts should not approach recharacterization with a freewheeling attitude, but with “regard to the exceptional nature of recharacterization within an adversarial system.” Ibid. Recharacterization has, for example, been used “deliberately to override a pro se litigant’s choice of a procedural vehicle.” Id., at 386 (disapproving of the practice). But it is not the role of courts to “create a ‘better correspondence’ between the substance of a claim and its underlying procedural basis.” Ibid.

In my view, then, it makes all the difference whether the Court of Appeals here properly construed an ambiguous motion or recharacterized an unambiguous motion contrary to Mata’s stated choice of procedural vehicle. Although the majority’s opinion does not address this point, Mata’s motion to reopen does not expressly state whether he was invoking statutory relief under 8 U. S. C. §1229a(c)(7)(A) or instead requesting sua sponte reopening under the Board of Immigration Appeals’ asserted inherent authority. Had the Court of Appeals engaged in the discretionary action of construing that ambiguous filing, it might not have abused its discretion by concluding that Mata really meant to ask for sua sponte reopening rather than equitable tolling of the statutory time bar.

The Court of Appeals, however, did not purport to construe an ambiguous motion. Instead, it applied what appears to be a categorical rule that all motions to reopen that would be untimely under §1229a(c)(7)(A) must be construed as motions for sua sponte reopening of the proceedings. See 558 Fed. Appx. 366, 367 (CA5 2014) (per curiam) (“In this circuit, an alien’s request for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte”). That rule would appear to foreclose a litigant from ever filing an untimely statutory motion to reopen removal proceedings seeking equitable tolling, as well as to invite improper recharacterization in the event any such a motion is filed. The Court of Appeals should have assessed Mata’s motion on its own terms. It erred in not doing so.

The reason it erred, though, has nothing to do with its fidelity to our precedents discussing “the judicial obligation to exercise jurisdiction,” ante, at 7. That obligation does not allow evasion of constitutional and statutory jurisdictional prerequisites. It is true that “when a federal court has jurisdiction, it also has a ‘virtually unflagging obligation to . . . exercise’ that authority.” Ibid. (quoting Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976)). But that “unflagging obligation” arises only if a court actually has jurisdiction. Federal courts have no obligation to seek out jurisdiction, nor should they misconstrue filings to satisfy jurisdictional requirements. Rather, federal courts should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the record.” See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342, n. 3 (2006). And they should apply the ordinary rule that the party asserting federal jurisdiction bears the burden of proving that jurisdictional prerequisites are met. Ibid. The practice of construing filings does not alter the usual rules of establishing jurisdiction in federal court.

I would vacate and remand for the Court of Appeals to consider the BIA’s judgment without the burden of what appears to be a categorical rule demanding that Mata’s motion be construed (or recharacterized) as a request for sua sponte reopening. Because the majority does more than this by reversing the judgment below, I respectfully dissent.

SCOTUS affirms jurisdiction to decide equitable tolling of statutory time limit to file a motion to reopen a removal proceeding

Posted in equitably toll the ninety-day deadline on motion to reopen, ineffective assistance of counsel, Motion to Reopen, reopen the removal proceeding sua sponte, SCOTUS | Leave a comment

USCIS Processing Time Chicago Field Office March 31, 2015

Posted on June 15, 2015 by Mike Baker

Field Office Processing Dates for Chicago IL as of March 31, 2015
Form Form Name Processing Timeframe:
I-485

 Application to Register Permanent Residence or to Adjust Status

June 9, 2014
N-400

 Application for Naturalization

October 15, 2014
N-600

 Application for Certification of Citizenship

5 Months

USCIS Processing Time Information-Chicago IL Field Office Posted June 15, 2015.

Posted in USCIS Processing Time Chicago IL Field Office | Leave a comment

Visa Bulletin For July 2015

Posted on June 15, 2015 by Mike Baker

Visa Bulletin For July 2015

Number 82
Volume IX
Washington, D.C

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 9th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01OCT07 01OCT07  01OCT07 15NOV94 15MAR00
F2A 08NOV13 08NOV13 08NOV13 15SEP13 08NOV13
F2B 15OCT08 15OCT08 15OCT08 08APR95  15MAY04
F3 15MAR04 15MAR04 15MAR04 22APR94 22AUG93
F4 22OCT02 22OCT02 22OCT02 01MAR97 08DEC91

*NOTE:  For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15SEP13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15SEP13 and earlier than 08NOV13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01OCT13 01OCT08 C C
3rd 01APR15 01SEP11 01FEB04 01APR15 U
Other Workers 01APR15 01JAN06 01FEB04 01APR15 U
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs

 C 01SEP13 C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with the cut-off date information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF JULY 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For July, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 36,500 Except:
Egypt:    27,100
ASIA 6,850

Except:
Nepal:      6,475
EUROPE 35,700
NORTH AMERICA (BAHAMAS) 7
OCEANIA 1,250
SOUTH AMERICA,
and the CARIBBEAN		 1,175

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN AUGUST

For August, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 44,250 Except:
Egypt:      28,700
ASIA 7,650 Except:
Nepal:      7,150  
EUROPE 39,750
NORTH AMERICA (BAHAMAS) 8
OCEANIA 1,325
SOUTH AMERICA,
and the CARIBBEAN		 1,350

D.  PHILIPPINES EMPLOYMENT THIRD PREFERENCE AND
     THIRD OTHER WORKER PREFERENCE CATEGORIES ARE
     UNAVAILABLE FOR JULY

Despite two retrogressions of the Philippines Employment Third and Third Other Worker cut-off dates in an attempt to hold number use within the annual limit, it has now become necessary to make the category "Unavailable" for the month of July.

It is possible that some unused numbers from the Second preference category may become available for September use. If not, Philippines Third preference numbers will once again be available beginning October 1, 2015 under the FY-2016 annual numerical limitations. 

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   June 9, 2015

Posted in Visa Bulletin, Visa Bulletin For July 2015 | Leave a comment

Online Detainee Locator

Posted on June 9, 2015 by Mike Baker

Use this page to locate a detainee who is currently in ICE custody, or who was released from ICE custody for any reason within the last 60 days. Online Detainee Locator

Search by A-Number

If you know the detainee’s A-Number, ICE recommends you use the A-Number search. The A-Number must be exactly nine digits long. If the A-Number has fewer than nine digits, please add zeros at the beginning. You are also required to select the detainee’s correct Country of Birth.
* A-Number: (e.g., 012345678)
* Country of Birth:

Search by Biographical Information

When searching by name, a detainee’s first and last names are required and must be an exact match (e.g., John Doe will not find Jon Doe or John Doe-Smith). You are also required to select the detainee’s Country of Birth. It is optional to enter the detainee’s Date of Birth to further narrow the search. Note that all value input below are evaluated for exact matches. https://locator.ice.gov/odls/homePage.do

Posted in ICE, ICE Detainers, Online Detainee Locator | Leave a comment

Supreme Court Holds that Drug Paraphernalia Must Be “Related to” a 21 USCA § 802 Listed Substance to Support Removal

Posted on June 8, 2015 by Mike Baker

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.

Download Case

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.”

Posted in convicted of a violation of any law or regulation of a state relating to a controlled substance, Deportation for Drug Crimes, Drug Laws in Illinois, possession of drug paraphernalia, SCOTUS | Leave a comment