By Alina Das
For the fourth time since 2006, the Supreme Court will be considering whether a minor drug offense must render a lawful permanent resident deportable from his home and family in the United States. In Mellouli v. Holder, the Court will be addressing whether Mr. Mellouli’s misdemeanor conviction for possession with intent to use drug paraphernalia—in this case, a sock—under Kansas law must be considered a controlled substance offense triggering deportation. Federal law—and more specifically, federal drug schedules—define what types of substances may trigger this ground of removal, and it is undisputed that Kansas law prohibits substances not on the federal schedules. (Indeed, federal law does not even criminalize the possession of drug paraphernalia.) Yet the government has deported Mr. Mellouli for his misdemeanor state conviction, arguing that it is nonetheless a close enough match to the federal controlled substance ground.
If the Court rejects the government’s position in Mellouli as overreaching, it will not be the first time. In Lopez v. Gonzales, the Court rejected the government’s argument that a conviction for simple drug possession must be considered a drug trafficking aggravated felony. In Carachuri-Rosendo v. Holder, the Court rejected the government’s argument that a second conviction for simple drug possession must be considered a drug trafficking aggravated felony. And most recently in Moncrieffe v. Holder, the Court rejected the government’s argument that a conviction that covers the social sharing of marijuana must be considered a drug trafficking aggravated felony. In each of these cases, the Court applied a commonsense reading of the relevant ground of removal, and applied a strict “categorical approach” to the analysis of the noncitizen’s underlying conviction.
Under the categorical approach, immigration adjudicators may consider only the minimum conduct proscribed by the statute of conviction in determining the immigration consequences of the past conviction. As explained by the Supreme Court in Moncrieffe, this means that immigration adjudicators may only consider “what the state conviction necessarily involved,” requiring a presumption that the conviction “rested on nothing more than the least of the acts criminalized.” As I have previously written, the categorical approach has been a bedrock method of analyzing convictions in the immigration context for over a century. Applying the categorical approach to a drug conviction where a federally controlled substance was not necessarily involved thus presents a rather clear inquiry for immigration adjudicators—they should not deem the offense to trigger the controlled substance ground of deportation.
In Mellouli, the government tries to argue around this precedent by suggesting that the language of the controlled substance ground of deportation permits a broader, ‘close enough’ approach. Under the controlled substance ground of deportation, a noncitizen is deportable if he or she has been convicted of a violation of law “relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Focusing primarily on the words “relating to,” the government argues that it need not prove that the substance at issue was necessarily one defined in the Controlled Substances Act (CSA). Instead, it argues that as long as the state statute covers some substances under the CSA, it does not matter whether the noncitizen facing deportation has a conviction necessarily involving such a substance. Indeed, under the government’s position, even a state conviction explicitly connected to a substance not on the federal schedules would trigger deportation.
As 92 immigration law professors explained in their amici curiae brief to the Court, the government’s ‘close enough’ approach ignores longstanding precedent applying the categorical approach to the controlled substance ground of removal. Congress has always sought to maintain ultimate control over the types of substances that will trigger deportability, from early immigration provisions focused primarily on narcotics, expanding to marijuana (later including an exception to deportability for one-time possession of a small amount of marijuana for personal use), and eventually encompassing the various substances specifically listed on the federal drug schedules today. Over the years, this has meant that some noncitizens will have convictions for drug offenses that do not necessarily match those punishable under the relevant federal law. And time and time again, immigration officials have properly applied the categorical approach to hold that such individuals are not deportable. Only recently has the agency—and the Solicitor General in its arguments defending and going even further than the agency’s position—begun to depart from this approach for drug paraphernalia offenses, doing violence to the statutory requirements, and at great cost to individuals with minor convictions like Mr. Mellouli.
‘Close enough’ is not good enough when it comes to deportation consequences, which the Supreme Court has long described as the “loss . . . of all that makes life worth living.” When it decides Mellouli, the Court should once again reject the government’s latest attempt to ignore the fair and straightforward application of the categorical approach that has long governed immigration adjudications involving drug offenses.
Alina Das is an Associate Professor of Clinical Law and Co-Director of the Immigrant Rights Clinic at New York University School of Law. She represents a group of immigration law professors as amici in support of Mr. Mellouli before the Supreme Court.