The categorical approach isn’t going anywhere. That is clear from the Supreme Court’s majority opinion in Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), released this morning. Led by Justice Ginsburg, the seven justices in the majority took a firm line on the BIA’s decision to deviate from the time-tested categorical approach to statutory analysis used to determine whether a particular conviction results in deportability. The Board was wrong to do that, the Court explained, and thus reversed the Eighth Circuit’s decision affirming the Board.
Along with seven other academics and practitioners, I’ve analyzed this case (formerly called Mellouli v. Holder) at length in an online symposium at crImmigration.com. Two of those contributors—Alina Das and Jennifer Lee Koh—were cited by the majority opinion today. One other—Kate Evans—was part of the legal team representing Mr. Mellouli. Symposium essays written prior to oral arguments explaining what was at stake in Mellouli are available here. Essays analyzing the Court’s decision will follow in the coming days.
The key issue in the case turned out to be what most expected: a discrepancy between state and federal drug laws. At the time of Mellouli’s conviction, Kansas criminalized possession of nine substances that federal law did not. Id. at 3. As is typical, the state prosecutor wasn’t required to provide proof that Mellouli possessed any substance listed in 21 U.S.C. § 802.
Complicating matters, Mr. Mellouli was not convicted of possession of any drug. Instead, he was convicted of possession of drug paraphernalia under Kansas law. Based on this conviction, he was ordered deported (and in fact deported) for having been convicted of an offense “relating to a controlled substance (as defined in section 802 of Title 21” of the U.S. Code. See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).
Unlike Kansas, federal law criminalizes selling or engaging in a commercial transaction involving drug paraphernalia, but it doesn’t criminalize possession of drug paraphernalia alone. Moreover, federal law doesn’t consider common household items to be drug paraphernalia. Kansas law does this too—in fact, the paraphernalia that got Mellouli into trouble was his sock, inside of which he had four Adderall tablets. Mellouli, No. 13-1034, slip op. at 4.
The Supreme Court concluded that this was not sufficient to render Mr. Mellouli deportable. Fatal to the federal government’s efforts was the fact that the state prosecutor hadn’t been required to show that Mr. Mellouli was concealing a substance criminalized under federal law (Mellouli acknowledged that it was Adderall, but the prosecutor didn’t prove this to the state court). Under the well-established categorical approach, immigration courts “look to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior.” Id. at 6 (citing Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. Law Review 1669, 1701, 1746 (2011)). “By focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law.” Mellouli, No. 13-1034, slip op. at 7 (citing Jennifer Lee Koh, The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime, 26 Georgetown Immigration Law Journal 257, 295-310 (2012)).
The BIA’s decision to depart from that analytical framework “makes scant sense,” the Court concluded. Mellouli, No. 13-1034, slip op. at 11. To do so would lead to the “incongruous” result “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.
Refusing to follow along, the Court emphasized “that Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug.” Id. at 13. After today’s decision that remains untouched. In the Court’s words, “to trigger removal under § 1227(a)(2)(B)(i) [INA § 237(a)(2)(B)(i)], the Government must connect an element of the alien’s conviction to a drug ‘defined in [§ 802]’.” Id. at 14. In effect, the Court’s opinion simply corrects the BIA’s misstep and returns the law what it has long been.
The majority’s opinion suggests several members of the Court are losing patience with the BIA’s repeated attempts to erode the categorical approach. The majority, for exampled, quoted Das’s insightful article unearthing the long history of courts applying the categorical approach in immigration cases as far back as the early twentieth century. Id. at 6. It relied on Koh to make the point that there are several very good reasons Congress tied deportability to a conviction. Id. at 7.
The Court has made similar points in past decisions, but still the federal government—through the Justice Department’s BIA and the attorneys who represent it before the federal courts—tries to chip away at this old and prudentially sound analytical method. And the Court continues to reject those attempts. Indeed, in a footnote, the majority framed the Court’s one major departure from the standard categorical approach, Nijhawan v. Holder, 557 U.S. 29 (2009), as “atypical,” suggesting lower courts, including the BIA, should not extend it to other contexts. Mellouli, No. 13-1034, slip op. at 5 n.3.
Justice Thomas wrote a dissenting opinion, which Justice Alito joined.
More analyses of Mellouli will appear on crImmigration.com later this week as part of the online symposium of major crimmigration law cases.
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