The U.S. Court of Appeals for the Ninth Circuit recently held that a drug paraphernalia conviction constitutes a controlled substance offense only if the conviction involved a substance criminalized by federal drug laws. Madrigal-Barcenas v. Lynch, No. 10-72049, slip op. (9th Cir. August 10, 2015). In doing so, the Ninth Circuit adjusted a robust body of case law to conform with the U.S. Supreme Court’s decision in Mellouli v. Lynch, 135 S. Ct. 2828 (2015), a case that I and a team of guest bloggers covered in detail on crImmigration.com.
This case involved a migrant convicted of possession of drug paraphernalia in Nevada. DHS claimed that conviction rendered him inadmissible and ineligible for cancellation of removal for non-lawful permanent residents. Back in 2013, the Ninth Circuit agreed. In light of Mellouli, however, Madrigal-Barcenas’s fate grew rosier.
The complication arises from the fact that non-LPR cancellation is unavailable to migrants convicted of a controlled substance offense, among other grounds. The controlled substance offense basis of inadmissibility, in turn, provides that the underlying conviction results in inadmissibility if it “relates to” a state, federal, or foreign government’s controlled substances laws. The BIA had long taken the position that drug paraphernalia convictions are controlled substance offenses if they are “associated with the drug trade in general.” See Matter of Espinoza, 25 I&N Dec. 118, 121 (BIA 2009). As I wrote in the book I released this month, Crimmigration Law, “In Mellouli v. Lynch, the Court held that a person is subject to removal under the controlled substance offense provision only if the government ‘connect[s] an element of the alien’s conviction to a drug’ listed in the federal [Controlled Substances Act]” (page 55). It’s not enough, in other words, for a drug paraphernalia conviction to exist; it must involve something regulated by federal drug laws.
In Madrigal-Barcenas, the Ninth Circuit took the opportunity to fall in line with Mellouli. It expressly overruled prior decisions holding that drug paraphernalia convictions are controlled substance offenses so long as they related to the drug trade in general. Madrigal-Barcenas, No. 10-72049, slip op. at 5.
More specifically, the court concluded that Nevada’s drug paraphernalia statute was too broad for the BIA to conclude that Madrigal-Barcenas was necessarily convicted of possessing paraphernalia related to a substance criminalized by the federal CSA. Id. at 6. On the contrary, the court explained that “it is undisputed that Nevada law lists at least some substances that are not on the federal list,” just like the Kansas statute involved in Mellouli. Id. It doesn’t matter, the court added, that Madrigal-Barcenas and the government disagree on the number of substances that Nevada regulates that the federal government doesn’t. “[I]t is the fact, not the degree, of overinclusiveness that matters,” the court wrote. Id.
The court remanded the decision to allow the immigration judge an opportunity to consider whether the modified categorical approach is appropriate in this situation. Id. at 7.