Mellouli v. Lynch: Limiting the Controlled Substance Deportability Ground in Section 237

 

Introduction: Mellouli v. Lynch and the Controlled Substance Deportability Ground in Section 237

deportability groundIn a decision dated to June 1, 2015, the Supreme Court held by a margin of 7-2 in Mellouli v. Lynch (PDF version)1 that a state drug conviction for concealing unnamed pills cannot trigger removal under section 237(a)(2)(B)(i) of the Immigration and Nationality Act if the statute in question does not categorically implicate a federally controlled substance. In this article, we will provide a brief overview of the statutes in question, the reasoning behind the decision, and what the decision means in the context of removal and deportation law.

The Statute in Question

Before discussing the case and decision, it is important to understand section 237(a)(2)(B)(i) of the INA [codified as 8 U.S.C. 1227(a)(2)(B)(i)]. The following is the provision:

 

“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”.

 

As we will discuss, the main issue at hand for the Supreme Court was the scope of the term “relating to” in the statute.

Case Background of Mellouli v. Lynch

The case concerned a lawful permanent resident (Moones Mellouli) who had pled guilty a misdemeanor offense under Kansas law for the possession of drug paraphernalia to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.”2 The only “paraphernalia” that Mellouli was charged with possessing was a sock in which he had placed four orange tablets. Neither the criminal charge nor the guilty plea identified the substance in question, although Mellouli had acknowledged prior to the criminal charge and guilty plea that the pills were Adderall.3

Based upon this conviction, Mellouli was arrested by Immigration and Customs Enforcement (ICE) officers and charged as deportable under section 237(a)(2)(B)(i) based upon his conviction.

Majority Opinion in Mellouli v. Lynch

The majority opinion, authored by Associate Justice Ruth Bader Ginsburg, noted that section 237(a)(2)(B)(i) incorporates section 802 of title 21 of the U.S. Code (“relating to a controlled substance (as defnined in section 802 of title 21)”). The opinion further notes that 21 U.S.C. 802(6) limits the term “controlled substance” to a substance that is included on one of the five federal schedules of controlled substances.

In weighing whether the statute was sufficient for triggering the deportability ground found in 237(a)(2)(B)(i), the majority applied the “categorical approach.” To read more about the categorical approach and other ways of reading statutes, please follow this link. In order for a conviction to be triggering under the categorical approach, any conviction under the statute must qualify as a conviction that triggers deportability under 237(a)(2)(B)(i).

The majority opinion started by discussing the phrase “relating to a controlled substance (as defined in section 802 of title 21)” from 237(a)(2)(B)(i). The Court explained that section 802 of title 21 defines “controlled substance” as those substances which are included on the federal schedules of controlled substances. It then noted that the statute that Mellouli was convicted under did not reference the federal schedules, but instead referenced Kansas' controlled substance schedules. Furthermore, the Court noted that Kansas' schedules contained at least nine substances that are not included on the federal schedules.

The Board of Immigration Appeals (BIA) held in administrative proceedings that, consistent with its prior decision in Matter of Martinez Espinoza (PDF version)4 in 2009, that a conviction for “drug paraphernalia” is “relating to” for purpose of section 237(a)(2)(B)(i) because it “involves the drug trade in general” and because the drug paraphernalia could be used for substances on the federal schedules. In denying Mellouli's petition for review, the Eighth Circuit not only deferred to the BIA's reasoning, but also addressed that the Kansas statute included nine substances that were not on the federal schedules. The Eighth Circuit held that the conviction nevertheless categorically related to a controlled substance because there was “nearly a complete overlap” between Kansas' drug schedules and the federal drug schedules. Before the Supreme Court, the government argued that the “nearly complete overlap” standard should apply not only to convictions for drug paraphernalia, but also for any drug-related conviction.

However, the Supreme Court majority disagreed. It noted that a necessary consequence of the BIA's argument is that a conviction for drug paraphernalia could trigger deportability even without necessarily implicating a drug on the federal schedules, whereas a conviction for possession or distribution of drugs would require that the drug in question actually be on the federal schedules. The majority held that this was not a permissible reading of the statute. With regard to the government's “nearly complete overlap” argument, the majority rejected this as overly broad and not faithful to 237(a)(2)(B)(i), which it held required that the statute categorically implicate federally controlled substances.

Accordingly, the majority held that Mellouli's conviction was not categorically a conviction covered by 237(a)(2)(B)(i) because a federally controlled substance was not necessarily implicated by the statute. Therefore, the Court held that Mellouli was not deportable on account of that conviction.5

Conclusion: Rules Established by Mellouli v. Lynch

The majority opinion means that a conviction for a drug offense must categorically implicate a drug defined as a controlled substance by 21 C.F.R. 802 (in other words, a substance on the federal schedules of controlled substances) in order to trigger deportability under section 237(a)(2)(B)(i) of the INA. In short, if it is possible that a person can be convicted under a statute without having done anything involving a federally controlled substance, the conviction cannot trigger deportability under 237(a)(2)(B)(i).

If a person is charged with deportability under any part of section 237, it is imperative for him or her to consult immediately with an experienced immigration attorney. An experienced immigration attorney will be able to assess the conviction and determine whether there is a potential incongruence between the statute that the alien was convicted under and the deportability ground that he or she is charged with (or any other possible defense that may be available depending on the facts of the case).

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  1. Mellouli v. Lynch, 135 S.Ct. 1980 (2015)
  2. Kan. Stat. Ann. § 21-5709(b)(2) (2013 Cum. Supp.)
  3. The majority notes that Adderall is actually a controlled substance as defined on the federal schedules. However, as we will explain, the majority did not consider this relevant to whether Mellouli was removable because the statute he was convicted under did not necessarily implicate a substance on the federal schedules, not to mention that neither the criminal complaint nor the guilty plea referenced specifically what the substance in Mellouli's sock was.
  4. Matter of Martinez Espinoza 26 I&N Dec. 118 (BIA 2009)
  5. Associate Justice Clarence Thomas filed a dissenting opinion that was joined by Associate Justice Samuel Alito. The dissent argued that “relating to” was a far broader term than the majority had allowed, and that the government's preferred interpretation (the overlap argument) was consistent with the ordinary usage of the term. The dissent cited various other provisions to support the argument that “relating to” was intended to make 237(a)(2)(B)(i) apply more broadly than the majority held. In addition to arguing that their proposed reading of the text was correct, the dissent noted that the majority's holding would mean that a conviction under any state statute that included any substance that was not on the federal schedules could not trigger deportability under 237(a)(2)(B)(i).