By Jennifer Lee Koh
4-0. 0-4. Over the past decade, the government has lost four times in a row in its defense of federal immigration laws that exact harsh immigration consequences upon noncitizens with minor drug convictions. Beginning in 2006 with Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that a single drug possession offense does not constitute an aggravated felony under the immigration laws. In Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the Court found that a second drug possession offense, absent a charge of recidivism, fails to rise to the level of an aggravated felony. Two years ago, in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Court concluded that a state conviction for possession of marijuana with intent to distribute was not an aggravated felony. And on Monday, June 1, 2015, the high court issued Mellouli v. Lynch, holding that possession of drug paraphernalia is not automatically a removable offense when the state drug law reaches more broadly than federal law.
Mellouli matters, most importantly, because the Supreme Court has again affirmed the role of the categorical approach in immigration law. The categorical approach refers to a methodology used to determine whether a noncitizen’s conviction falls within the ambit of the federal deportation statutes. The categorical approach has come under attack in the federal courts and Board of Immigration Appeals. But as César Cuauhtémoc García Hernández explains in his recap of the opinion, “[t]he categorical approach isn’t going anywhere,” and “is alive and well.”
[Editor’s Note: This essay is part of an online symposium about Mellouli on crImmigration.com that began in January prior to oral arguments. Past analyses of the Court’s decision are available here and here; more essays will be posted in the coming days.]
Justice Ginsburg’s majority opinion can also be read as a series of comparisons in the law. These comparisons challenge the logic behind treating Mellouli’s conviction for possession of drug paraphernalia as a deportable offense in the first instance. (Arguably though, the very nature of his wrongdoing – possessing four Adderall pills in a sock – provides enough fodder to question whether Mellouli’s conviction should have triggered removal).
The first is a contrast between Kansas drug law (under which Mr. Mellouli was convicted) and federal drug law. What if Mr. Mellouli had been prosecuted under federal law? He might not have been convicted, given that “[u]nder federal law, Mellouli’s concealment of controlled substance tablets in his sock would not have qualified as a drug-paraphernalia offense.” Slip Op. at 4. Federal law does not criminalize mere possession of drug paraphernalia at all, and to the extent federal law defines paraphernalia, it does not “include common household or ready-to-wear items like socks.” Id. at 5. And in 19 states, explains the Court, possession of drug paraphernalia is not even a punishable crime. Id.
Second, the Mellouli majority compares the Board of Immigration Appeals’ (BIA) treatment of controlled substance possession to its treatment of controlled substance paraphernalia possession. Under the BIA’s approach, possession of drug paraphernalia would automatically trigger removability, on the theory that paraphernalia offenses relate “to the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). By contrast, the BIA would subject drug possession offenses to a categorical analysis, in which state statutes that criminalize a swath of substances broader than the federal schedule would not automatically lead to a removability finding. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014) (discussed on crImmigration.com here). But a such a scheme — in which noncitizens with drug paraphernalia offenses are treated more harshly than those convicted of drug possession — would “make scant sense,” and therefore should not be entitled to the deference typically afforded by the judiciary to administrative agencies. Slip Op. at 11.
A third point of analysis compares the state criminal statute under which Mellouli was convicted to the list of drugs regulated by federal law. The exact schedule of drugs criminalized by federal law mattered in Mellouli because the Immigration & Nationality Act specifically states that deportability occurs when a noncitizen is convicted of a law “relating to a controlled substance,” and “defined in [federal law].” INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). The government argued that any drug crime should trigger removal on the theory that it would “relat[e] to a controlled substance.” The Court astutely describes the government’s position as a form of statutory interpretation that “stretches to the breaking point .” Slip Op. at 13. Instead, the Court properly requires a “direct link between an alien’s crime of conviction and a particular federally controlled drug.” Id. at 13 (emphasis added). The Mellouli majority brings a measure of logic, clarity and reasonableness to the intersection of the criminal and immigration laws, an often convoluted and draconian area of law.
Jennifer Lee Koh is Professor of Law and Director of the Immigration Clinic at Western State College of Law in Orange County, California. Her article, 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), was cited extensively in Justice Ginsburg’s majority opinion in Mellouli v. Lynch.
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