By Jennifer Lee Koh
In Mellouli v. Holder, the Supreme Court will again clarify the reach of the nation’s drug-related immigration provisions, as well as speak to the proper application and scope of the categorical approach in immigration law. In this case, the Court will determine what the government must prove to impose immigration consequences (such as deportation and detention) on noncitizens with convictions for possession of drug paraphernalia. Section 237(a) of the Immigration and Nationality Act (INA) renders noncitizens who have already been lawfully admitted to the U.S. (such as lawful permanent residents) removable if they have incurred a “convict[ion]” for violation of a law “relating to controlled substance, (as defined in section 802 of Title 21).” 8 U.S.C. § 1227(a) (emphasis added). Importantly, 21 U.S.C. § 802 refers to a provision of the Controlled Substances Act, a federal law criminalizing some, but not all, controlled substances.
[This essay is part of an online symposium on crImmigration.com addressing Mellouli v. Holder. For other contributions, visit the symposium introduction here.]
Is it sufficient, as the Eighth Circuit asserts, for the Department of Homeland Security (DHS) to prove the existence of a conviction for possession of any type of drug paraphernalia, irrespective of whether federal law criminalizes the substances encompassed by the state criminal statute? Or, as Mr. Mellouli argues, should DHS be required to show through the record of conviction that the noncitizen’s conviction involved a controlled substance that is actually prohibited by federal law? At first blush, the questions raised in Mellouli may seem narrow and technical, but the case illustrates broader issues related to the proper application of the categorical approach as well as the logic of imposing the sanctions of deportation and detention for minor offenses such as possession of drug paraphernalia.
Understanding the categorical approach is critical to representing noncitizens at the intersection of immigration and criminal law. The categorical approach refers to the methodology used by adjudicators to determine whether a state criminal statute falls within the ambit of the federal immigration law’s removability provisions. The categorical approach generally requires that adjudicators focus on statutory elements and, in limited instances, the record of conviction, but to refrain from relitigating the underlying facts of the crime. Applying and defining the categorical approach has, at times, frustrated the lower courts. Indeed, the Eighth Circuit in Mellouli described the categorical approach as having “generated persistent uncertainty and confusion.” See Mellouli v. Holder, 719 F.3d 995, 1002 (8th Cir. 2013). But the categorical approach also preserves uniformity, predictability, and fairness in immigration adjudication, and provides a mechanism to temper some of the harsh excesses of the immigration statute’s removability provisions. See generally Jennifer Lee Koh, The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime, 26 Geo. Immigr. L.J. 257 (2012). The Eighth Circuit’s exasperation with the categorical approach does not justify its flawed interpretation of the law.
Mellouli also presents an opportunity to step back and question the logic of treating possession of drug paraphernalia convictions as offenses sufficient to trigger the harsh consequences associated with removability findings. The INA has long imposed sanctions on noncitizens with drug offenses. But as the amicus brief on behalf of the National Association of Criminal Defense Lawyers and others points out, possession of drug paraphernalia charges are typically treated by state courts in a manner consistent with their “low-level, nuisance status—they are hurriedly processed through the court system with a minimum of protection for defendants,” NACDL Brief at 4-5, often resulting in little or no jail time. In Mr. Mellouli’s case, the paraphernalia in question was a sock, the state court did not identify the controlled substance, and the Kansas statute criminalized more substances than regulated by federal law. Indeed, the Obama Administration appears to have recognized the petty nature of possession of drug paraphernalia convictions by excluding such offenses from its definition of “significant misdemeanors.” (As a result, possession of drug paraphernalia offenses are absent from DHS’s civil immigration enforcement priorities, and also should not disqualify individuals for administrative relief in the form of either Deferred Action for Parental Accountability (DAPA) or Deferred Action for Childhood Arrivals (DACA)). Yet under the immigration statute and the Eighth Circuit’s reading, any lawful resident who incurs a drug paraphernalia conviction would likely be found removable – irrespective of the tenuousness of the connection between the state drug paraphernalia statute and the federal removability provision. And in certain circumstances, those individuals may be ineligible for discretionary relief (as was the case for Mr. Mellouli, who has already been deported, Pet. Br. at 8)).
The Supreme Court does not have the option in Mellouli to exempt possession of drug paraphernalia offenses from the grounds of removability altogether. It can, however, read the removability provision at section 237 strictly, and consistent with the categorical approach in the immigration context. The Court should rule that in order to impose deportation’s devastating effects on an individual for a past conviction, then the conviction must indeed meet each of the elements set forth by Congress in the statute, and that it is not sufficient to conclude that the conviction “relates to…the drug trade in general,” as the Board of Immigration Appeals has endorsed in recent years. Mellouli, 719 F.3d at 999 (citing Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009)).
In the case of section 237, Congress clearly stated that the substance must relate to 21 U.S.C. § 802 and made no generalized reference to the global drug trade. The Court can and should require that DHS prove, in removal cases predicated upon possession of drug paraphernalia convictions, that the underlying conviction reflect a connection to a controlled substance regulated by federal law.
Jennifer Lee Koh is an Associate Professor of Law and Director of the Immigration Clinic at Western State College of Law in Fullerton, California.