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 [...]
The “ordinary” case’s demise in criminal sentencing & its implications for immigration law
By Linus Chan When Congress passed the Armed Career Criminal Act (ACCA) of 1984, federal courts needed to systematically decide what state convictions required sentencing enhancements designed to punish not only “habitual criminals” but “violent” offenders as well with higher sentences. Congress, however, didn’t define what makes for a violent offense and the lower courts were torn: did Congress mean for state law to govern or was a uniform, nationwide definition to apply? In 1990, the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), decided that a uniform definition was [...]
BIA flouts Supreme Court’s consistent categorical approach analysis
Just one day after the U.S. Supreme Court issued its latest decision explaining how the categorical approach of statutory analysis applies to deportation cases, the Board of Immigration Appeals issued a decision ignoring everything the Court said. In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA June 2, 2015), the BIA held that immigration judges must consider the “ordinary case” when determining whether a conviction constitutes a crime of violence aggravated felony under 18 U.S.C. § 16(b), the second of two alternative definitions of “crime of violence.” This case involved an LPR [...]
Litigating Mellouli: Adventures in Team Whack-a-Mole
By Kate Evans In Mellouli v. Lynch, the Supreme Court reached what may now look like an inevitable result when, for the fourth time in a decade, it rejected an attempt by the government to deport a lawful permanent resident for a minor drug offense using the categorical approach. But the case did not start out that way. Rather, the straightforward requirement that “the Government must connect an element of the alien’s conviction” to a federally controlled substance, slip op. at 14, came only as the result of a far-reaching collaboration to winnow down the case. Editor's Note: This essay is [...]
Mellouli in the context of the modern deportation system
By Jason Cade On Wednesday, Jennifer Koh noted that Mellouli v. Lynch, 575 U.S. --- (2015), marks the fourth time in ten years that the federal government has zealously litigated the application of harsh removal provisions to lawfully present noncitizens with minor drug convictions all the way to the Supreme Court, only to lose. For my contribution to this online symposium, I’d like to put the Mellouli decision into an even broader context. My thoughts here draw on ideas that I am developing in a forthcoming article, entitled Enforcing Immigration Equity, to be published later this year in [...]
High Court Finds Government a Four-Time Loser
By Sejal Zota In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court returned a measure of sanity to the government’s deportation rules. For the fourth time in a decade the Supreme Court overwhelmingly rejected the government’s use of the nation's immigration laws to deport an individual with a minor drug conviction. Unfortunately, thousands of families were already separated from their spouses, children, parents, and siblings by the time our high court could intervene. Editor's Note: This essay is part of an online symposium about Mellouli on crImmigration.com [...]
Mellouli Matters: Exploring The Categorical Approach Through Three Legal Comparisons
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 [...]
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 § [...]