Issues
The Supreme Court will determine when a state drug-paraphernalia conviction sufficiently “relates to” a substance listed under the Controlled Substances Act to justify removing a permanent U.S. resident under the Immigration and Nationality Act. Moones Mellouli argues that, even though Adderall is a federally-controlled substance, his deportation was impermissible because his state conviction record did not identify the substance found in his drug paraphernalia and thus did not relate to a federally-controlled substance. United States Attorney General Holder contrastingly argues that deportation is permissible under the Immigration and Nationality Act because a state drug-paraphernalia conviction itself sufficiently relates to a federally controlled substance. The Supreme Court’s decision will impact immigration and safety in the United States.
Questions as Framed for the Court by the Parties
To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?
Facts
The United States Attorney General, Eric Holder, is responsible for adding substances to and maintaining the Federal Controlled Substance Schedule. Holder and the Department of Justice are also responsible for federal regulation of controlled substances in the United States.
8 U.S.C. § 1227(a), also known as section 237(a) of the Immigration and Nationality Act (“INA”), outlines the classes of lawful aliens in the U.S. who may be deported from the country. Section 1227(a) specifically allows for the deportation of “any alien who at any time after admission [to the U.S.] has been convicted of a violation . . . of any law or regulation of a State, the United States, or any foreign country relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” For purposes of federal law, § 802 of the Controlled Substances Act (“CSA”) defines the term “controlled substance.”
In April 2010, Moones Mellouli, a citizen of Tunisia and a permanent resident of the United States, was arrested in Kansas for driving under the influence of alcohol. During his detention, officers found four orange tablets in Mellouli’s sock. The tablets were Adderall, a substance listed on the Kansas and U.S. Federal controlled substance schedules. Mellouli pled guilty to the charge of misdemeanor possession of drug paraphernalia (his sock) in violation of Kansas state law.
Mellouli argued that his Kansas drug-paraphernalia conviction does not fall within § 1227(a)(2)(B)(i) without a showing that the paraphernalia (his sock) is connected to a federally controlled substance outlined in § 802. Mellouli’s amended complaint to the Board of Immigration Appeals (“BIA”) did not identify the tablets found in his sock as Adderall. While Adderall is a substance on both the Kansas and U.S. controlled substance schedules, Mellouli’s conviction record from Kansas also did not specifically identify the substance found in his sock as Adderall. Thus, Mellouli claimed that there was a possibility that his Kansas drug-paraphernalia conviction does not involve a substance on the federal schedule. In other words, Mellouli argued that the government could not show that his drug paraphernalia conviction for the sock under Kansas law was connected to his possession of Adderall, which would be considered a federal offense that could result in deportation under § 1227(a).
Finding against Melloui, the BIA “concluded that Melloui’s conviction for drug paraphernalia involves drug trade in general and, thus, is covered under 8 U.S.C. ¶ 1227(a)(2)(B)(i).” The Eighth Circuit Court of Appeals agreed, finding that Mellouli’s drug paraphernalia conviction rendered him deportable under § 1227(a)(2)(B)(i). The Eighth Circuit reasoned that the BIA was correct in its reading of the phrase “relating to” when determining that Mellouli’s drug paraphernalia conviction related to the possession of a federally controlled substance. The court determined that Congress intended “to broaden the reach of the removal provision to include state offenses having a ‘logical or causal’ connection to federal controlled substances.”
Mellouli now appeals to the U.S. Supreme Court requesting that the Court overturn the Eighth Circuit’s ruling and reinstate Mellouli’s legal resident status.
Analysis
Under the INA, a non-citizen can be deported for being convicted of a state, federal, or foreign law “relating to” a controlled substance. In this case, the Supreme Court will determine when a state-law violation “relates to” a federally controlled substance defined in § 802 of the CSA. Mellouli argues that his state drug-paraphernalia conviction does not relate to the controlled substances under § 802. Holder contrastingly maintains that Mellouli’s drug-paraphernalia conviction does relate to the controlled substances under § 802.
INTERPRETING “RELATING TO”
Mellouli contends that the INA permits removal only when a state conviction “relates to” a controlled substance under § 802 of the CSA. Mellouli thus argues that the plain meaning of the statue forbids the definition of “controlled substance” from extending beyond those substances covered in § 802. Mellouli explains that Congress was very intentional in crafting the INA’s language. By examining the language used elsewhere in the INA, Mellouli contends that Congress uses additional language when it wants to refer to controlled substances beyond those defined in § 802.
Mellouli further contends that deportation is only warranted when a state-law conviction, as opposed to a state law, relates to a § 802 substance. Mellouli explains that to hold otherwise would permit deportations so long as a state-law violation could relate to a § 802 substance, even when the conviction itself was for a substance beyond the scope of those defined in § 802. Furthermore, Mellouli argues that since Kansas prohibits paraphernalia used to store controlled substances beyond the scope of those defined in § 802, Mellouli did not definitively violate the INA.
In opposition, Holder argues that Congress intended the INA to have a broad scope and include controlled substances beyond those defined in § 802. By looking at other provisions of the INA, Holder maintains that Congress specified, in particular subsections, when removal should be based on a conviction as opposed to just a law. Holder contends that, since Congress did not specify that a conviction involving a federally controlled substance was necessary for removal under § 1227(a)(2)(B)(i), removal should be based on violations of the broader laws relating to a federally controlled substance.
Holder further argues that the plain language of the statute suggests that non-citizens are deportable if the underlying state law, and not the conviction, relates to the federally controlled substances under § 802. Holder explains that, since there is a great overlap between the substances Kansas regulates and those regulated under § 802, Kansas’s laws are related to the federally controlled substances under § 802. Further, Holder argues that the phrase “relating to” modifies the phrase “law or regulation of a State, the United States, or a foreign government” because this phrase comes directly before “relating to.”
THE CATEGORICAL APPROACH
In determining whether a state criminal conviction warrants deportation, courts regularly apply the “categorical approach” where judges analyze the elements of the relevant criminal statute to determine if the relevant state law crime fits into a category of offenses that warrants deportability. In analyzing the state law, the individual’s underlying conduct is not factually examined. Thus, the Supreme Court will likely analyze whether the elements of the Kansas paraphernalia conviction establish an “offense related to controlled substances.”
Mellouli argues that the BIA’s interpreation of the INA is not consistent with the categorical approach. Mellouli contends that if the conviction does not meet each element of the federal statute, then the conviction “is insufficient to support deportation.” Mellouli argues that by treating the federally controlled substances defined in § 802 as an element underlying the state conviction, the categorical approach would ensure a uniform rule for removal. By reading the language of the statute, Mellouli argues that regulating the substances defined in § 802 is what unifies state, federal, and foreign convictions. Mellouli also argues that the BIA departs from the categorical approach by allowing deportation for convictions involving substances beyond those detailed in § 802; this departure rejects the consistency and uniformity provided when reading the plain language of the statutory text. Mellouli further argues that a non-citizen should not be deported for those convictions that regulate controlled substances beyond those detailed in § 802. Mellouli explains that courts read the INA “to simultaneously require one set of elements for paraphernalia convictions and a different set of elements for other types of convictions.” Mellouli contends that adopting the BIA‘s interpretation would permit “a non-citizen [to] be removed for a conviction of a violation only the State criminalizes involving substances only the State controls.”
Holder argues that the BIA’s interpretation of the INA is consistent with the categorical approach. Holder contends that an examination of the Kansas statute establishes that Mellouli fulfilled the elements of violating “a law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of [the CSA]).” Holder also argues that the INA does not require a complete overlap between those controlled substances that the state regulates and those that the federal government regulates. Holder argues that the statutory definition of § 1227(a)(2)(B)(i) “demands less than a one-to-one correspondence between state law and federal elements” and, therefore, the categorical approach promotes implementing the statute’s text and not trumping it. Holder argues that the categorical approach only requires that the conviction be under a law relating to federally controlled substances and that a paraphernalia conviction should not be “limited to any particular substance.” Holder also contends that the elements under the categorical approach are established in drug-paraphernalia offenses because drug paraphernalia can be used in connection to a variety of drugs regulated by the federal government, including those defined in § 802.
CHEVRON DEFERENCE
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court held that a reasonable interpretation of a government agency enforcing a statute should be given deference “if Congress has not directly spoken to the precise question at issue.” The agency’s interpretation applies, even if there is another better or more reasonable interpretation; however,if the statute is unambiguous, the plain meaning of the statute applies.
Mellouli argues that the BIA cannot interpret the INA because the statute is unambiguous. Mellouli further contends that, under the BIA’s interpretation, non-citizens can be removed for low-level offenses not punishable under the federal statute—offenses which are commonly treated as misdemeanors by the states.
Holder disagrees with Mellouli, stating that deference to the BIA’s interpretation is reasonable because the statute is ambiguous. Holder argues that the BIA’s interpretation is reasonable and falls in line with what Congress intended. Holder further argues that although § 1227(1)(2)(B)(i) removes non-citizens for allegedly “low-level” offenses, these offenses are ones the statute explicitly intended to punish.
Discussion
In this case, the Supreme Court of the United States will have the opportunity to determine whether a lawful non-citizen resident may be deported for possession of drug paraphernalia pertaining to a substance proscribed by state law without proof that the paraphernalia is also a substance proscribed by federal law under § 802 of the CSA (“§ 802”). Mellouli argues that his state drug-paraphrenalia conviction did not “relate to” a substance outlined in § 802. Attorney General Holder, however, contends that Mellouli’s state drug-paraphrenalia conviction did “relate to” a substance outlined in § 802. The Supreme Court’s decision will impact immigration and safety in the United States.
EFFECTS ON IMMIGRATION AND PUBLIC SAFETY
In support of Melloui, amicus the National Immigrant Justice Center (“NIJC”) argues that an affirmation of the BIA’s ruling will unjustifiably prevent many lawful permanent residents with drug paraphernalia convictions from applying for cancellation of removal under the INA. The NJIC explains that that Mellouli’s conduct would be considered “a minor misdemeanor or not a crime at all” in many states. The NJIC argues that only a small fine or other minimal penal consequence normally follows a drug-paraphernalia conviction. The NIJC submits that the BIA’s ruling will lead to immigration consequences that extend beyond deportation, such as preventing non-citizens from seeking relief from removal from the attorney general. The NJIC explains that Mellouli’s conviction could potentially act as a “total bar to cancelation of removal for non-permanent residents.” Also in support of Melloui, amicus National Association of Criminal Defense Lawyers (“NADCL”) argues that Mellouli’s actions were consistent with a minimal offense that generally results in minimal consequences under the laws of Kansas and other states. The NADCL argues that the “drastic measure of deportation” as a consequence of such minimal offenses falls outside of what Congress intended when it declared deportation a consequence for controlled-substance crimes.
In contrast, the Holder argues that a plain reading of § 1227(a)(2)(B)(i) and the INA, as undertaken by the Eighth Circuit, actually promotes public safety and permits the attorney general and the Justice Department to maintain the authority to remove aliens convicted of drug crimes regardless of whether state and federal drug schedules include the same substances. Holder argues that, if the BIA’s ruling and the Eighth Circuit’s ruling is rejected, the attorney general’s authority to remove aliens convicted of drug offenses in states whose schedules include substances not on the federal schedule would be undermined. Additionally, Holder argues that Congress recognized that drug crimes have “a substantial and detrimental effect on the health and general welfare of the American people.” Holder also explains that that Congress “aligned the removal provisions” with other relevant statutes to reflect and allay this concern regarding the negative effects of drug-related crimes.
Conclusion
The Supreme Court will determine when a state drug-paraphernalia conviction sufficiently “relat[es] to” a substance listed under the CSA to justify removing a permanent U.S. resident under the INA. Mellouli argues that his deportation was impermissible because Mellouli’s state conviction record did not relate to a federally controlled substance. Holder contrastingly argues that deportation is permissible under the INA because a state drug-paraphernalia conviction itself sufficiently relates to a federally controlled substance. The Supreme Court’s decision will impact immigration and safety in the United States.