The Lawletter Vol 40 No 5
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) 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), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.
Mr. Mellouli was a U.S.-educated lawful permanent resident who worked as an actuary, taught college-level mathematics, and was engaged to be married to a U.S. citizen. The tablets in a sock were discovered during a postarrest search in a Kansas detention facility following an arrest for driving under the influence and driving with a suspended license. He was charged with, and pleaded guilty to, misdemeanor possession of drug paraphernalia to store a controlled substance and driving under the influence. Upon the successful completion of probation, Immigration and Customs Enforcement officers arrested him as deportable based on the paraphernalia conviction.
The BIA argued its case as an exception to the general rule. According to the BIA, the so-called "categorical approach" that applies in determining whether a drug possession conviction is a deportable offense under INA section 237(a)(2)(B)(i) should not apply to drug paraphernalia convictions. As explained in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), under the categorical approach, immigration judges are supposed to look at the conviction, not the underlying conduct. If the equivalent state offense does not involve a controlled substance as defined in 21 U.S.C. § 802, then it is not a deportable offense. In this case, where the controlled substance was not identified in the criminal charge and where Kansas law criminalizes a number of substances that are not listed as controlled substances under federal law, it had to be presumed that the conviction did not involve a controlled substance as defined by federal law. Thus, under the categorical approach, Mr. Mellouli's conviction could not be a deportable offense. Mellouli, 135 S. Ct. at 1987-88. The BIA, however, relied on a prior decision, In re Martinez Espinoza, 25 I. & N. Dec. 118 (2009), which had held that because paraphernalia charges relate to the drug trade in general, there was no reason to show that the type of controlled substance involved was one that was defined under federal law. 135 S. Ct. at 1988. Justice Ginsberg, writing for the majority, rejected the disparate approach to drug paraphernalia convictions, pointing out that "[t]he 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." Id. at 1989 (Court's emphasis). Because the BIA's interpretation "makes scant sense," it was not entitled to deference. Id. The Court also rejected an additional rationale offered by the Eighth Circuit, that is, "that a state paraphernalia possession conviction categorically relates to a federally controlled substance so long as there is 'nearly a complete overlap' between the drugs controlled under state and federal law." Id. (quoting Mellouli, 719 F.3d at 1000). The construction of INA section 237(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 [21 U.S.C.] § 802." Id. at 1990-91. Justice Thomas, with Justice Alito joining, dissented.
1The personal use exception—"other than a single offense involving possession for one's own use of 30 grams or less of marijuana"—was the subject of a December 2014 Lawletter blog post. See Suzanne Bailey, Standard for Evaluating Criminal Conviction in Removal Proceedings Based on Conviction, 39 Lawletter No. 9, at 33 (posted Dec. 4, 2014).