The Real World Consequences of Mellouli v. Lynch

By Michael Z. Goldman

In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court made absolutely clear that a state drug conviction can only trigger removability if it can be shown by the government that the “controlled substance” at issue is located on the federal — and not just the state — controlled substance schedules. This is because the Immigration and Nationality Act (“INA”) makes removable only those convicted of offenses “relating to a controlled substance (as defined in section 802 of Title 21)” (i.e., the federal controlled substance schedules). See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).

[Editor’s Note: This essay is part of an online symposium about Mellouli on crImmigration.com that began in January prior to oral arguments. An earlier analysis of the Court’s decision is available here; more essays will be posted in the coming days.]

In Mellouli, the noncitizen facing deportation had been convicted of a misdemeanor Kansas drug offense (possession of drug paraphernalia) in which the Kansas criminal complaint failed to identify the controlled substance at issue. And notably, the Kansas controlled substance schedule was broader than the federal counterpart, containing nine controlled substances not on the federal list.

Mellouli’s lawyers urged that because of this critical discrepancy the government could not satisfy its burden to demonstrate that the controlled substance at issue was “defined in section 802 of Title 21,” and therefore Mellouli should not be found removable (unfortunately for Mellouli he had already been deported).

Was this discrepancy in the federal and state schedules a “harmless error”? Should paraphernalia offenses be analyzed differently, as previously held by the Board of Immigration Appeals and U.S. Court of Appeals for the Eighth Circuit? Should the government win as long as the state and federal schedules have “substantial overlap”, as urged by the Obama administration lawyers?

To these questions the Court in a 7-2 decision resoundingly said NO. Justice Ginsburg’s majority decision was straightforward (and almost circular) statutory analysis. Because the INA makes reference to controlled substances as “defined in section 802 of Title 21”, “to trigger removal . . . the Government must connect an element of the alien’s conviction to a drug ‘defined in [§802].’” Mellouli, No. 13-1034, slip. op. at 14.

Despite its seeming simplicity, the Mellouli holding will in my opinion have an enormous impact on a great number of non-U.S. citizens facing removal proceedings for drug offense convictions arising in states where the controlled substance schedule at issue is broader than the federal at the time of conviction (e.g., Kansas, Michigan, New York, California).  This is because, as I discussed three years ago, in many misdemeanor state drug cases the government has NEVER identified the controlled substance at issue in judicially noticeable documents such as a criminal complaint, or sentencing minutes (as was the case in Mellouli).

The Supreme Court has now confirmed that in such a situation the government will be out of luck and termination of immigration court proceedings should be immediate. Further examples of this playing out, pre-Mellouli, can be seen here:

• California: Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-79 (9th Cir. 2007) (terminating case where California schedule listed narcotics not contained on the federal equivalent and record of conviction was inconclusive as to the identity of the narcotic).

• Connecticut: Matter of Spaulding, 2004 WL 2943545 (BIA Nov. 2, 2004) (reversing Immigration Judge and terminating proceedings where, at time of conviction, two substances were listed in the Connecticut but not the federal controlled substance schedules, and it could not otherwise be determined what substance respondent was convicted of possessing).

• New York: Matter of Nunez (Immigration Court, New York, N.Y. Sept. 20, 2013) (terminating removal proceedings after finding New York’s scheduled of controlled substances to be broader than the federal equivalent and recognizing that a mere New York “misdemeanor complaint” could not satisfy the government’s evidentiary burden to identify the controlled substance at issue)

Mellouli should have immediate dividends for many already in the removal system with older state controlled substance convictions. And going forward I don’t believe that state prosecutors will bend over backwards to make their state-level documents ICE/DHS “Mellouli-friendly”. They are too busy. Of course, one of the reasons the paperwork in lower-level state drug offenses is lacking is because of the relentless, churning of poor criminal defendants who cannot afford a defense and who accept plea deals rather than risk years in prison. The results of this factory-like process are complaints that are not specific, and sentencing and plea minutes (if they do exist) that are rote. This will not change simply because of a Supreme Court decision.

Post-Mellouli immigration practitioners with clients in removal proceedings for controlled substance offenses will come close to committing ineffective assistance of counsel without considering whether the state definition of “controlled substance” is broader than the federal counterpart. And criminal defense attorneys with non-U.S. citizen clients can do their part by working with state prosecutors to ensure that “non-identification” of a controlled substance is part of a plea deal.

Michael Z. Goldman is an Immigration Attorney with offices in midtown Manhattan. He has experience practicing in Immigration Court, and before the Board of Immigration Appeals, the U.S. District Courts and the U.S. Courts of Appeals. He is a member of the American Immigration Lawyers Association.

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