SCOTUS: Drug Paraphernalia Not A Deportable Offense

The Supreme Court announced its opinion in Mellouli v. Lynch this morning. The Court reversed the Eighth Circuit, which had upheld Mellouli’s removal/deportation on the basis of a drug paraphernalia conviction. The case involved a Tunisian permanent resident who was ordered removed on the basis of a Kansas conviction for possession of drug paraphernalia for possessing a sock to conceal four tablets. Beyond the comic aspect of a paraphernalia charge arising from sock possession, the Court’s decision actually has dramatic consequences for thousands of immigrants across the country.

The Court’s decision re-affirms the application of the categorical approach in removal matters generally, and holds, specifically, that an immigrant’s conviction for misdemeanor possession of drug paraphernalia under a Kansas statute is not a “law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21)” under 8 U. S. C. §1227(a)(2)(B)(i). This decision overturns a Board of Immigration Appeals decision (Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (2009)) which had promoted a broad reading of the “relating to” language in the context of paraphernalia convictions. The Board had reasoned that it was essentially irrelevant whether the type of controlled substance involved in a paraphernalia conviction is one defined in of Title 21 § 802 of U.S. Code. In rejecting this reasoning the high court insisted that such a reading “stretches to the breaking point” the removal statute by permitting removal even where “[no] controlled substance (as defined in [§ 802])” figures as an element of the offense.” Slip opinion at page 13.

The opinion is promising in at least a couple of ways but it leaves some substantial questions unanswered. First, as a practical matter, the opinion seems wholly incompatible with the Board’s absurd decision last year in Matter of Ferreira, 26 I&N 415 (2014) – and that is a very good thing. Remember, the Board in Ferreira awkwardly borrowed the “realistic probability test” from another Supreme Court case (Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)) to support its holding that – exclusively in the context of drug convictions – the burden is shifted to the Respondent even where the statute by its terms is broader than the federal generic offense. Ferreira held that “where a state statute on its face covers a controlled substance not included in the Federal controlled substances schedules, [the Respondent must prove that there is] a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.” In simple terms, Ferreira demanded that even where a state drug offense is overbroad and punishes conduct pertaining to drugs not controlled by Federal law, an individual may still be deported unless they can prove that it is “realistic[ally] probabl[e]” that the State prosecutes those drugs on their books that are not covered by the Federal act. This particularly galling effort by the Board to muddy the waters was all the more shocking as it came so soon after the Supreme Court unambiguously ruled in favor of a bright line categorical approach in Descamps v. United States, 570 U.S. __ (2013). Today’s decision by the Supreme Court does not support such shenanigans. The Supreme Court re-affirmed that if the elements of the conviction do not require proof of a federally controlled drug, the conviction is not a drug conviction for federal immigration removal law purposes. The high court did not specifically denounce the Ferreira reasoning (because it was not the issue squarely before it) but its holding is in every real sense inconsistent with it.

Second, the opinion endorsed a narrower reading of the “relating to” language. That phrase is found not just in the statute at issue in this case, but in multiple other parts of the removal statutes. While the court limited its analysis to the specific context of 8 U. S. C. §1227(a)(2)(B)(i), as referenced above, the court pushed back against the endlessly expansive reading of the statutory phrase pushed by the Government that would deem any state drug law with “substantial overlap” with the federal law as “relating to.”

The Mellouli court did not, however, spell out a meaningful standard for determining the limits to the “relating to” language, nor did it squarely address the bizarre re-imagination of the categorical approach required by the Board under Matter of Ferreira, despite indirectly rejecting it. The court, in a footnote, stated “[w]hether Ferreira applied that framework correctly is not a matter this case calls upon us to decide.”

The court also did not address the lingering question as to whether naming the substance in the conviction record would have necessarily changed the result. The court held that the Government must “connect an element of the alien’s conviction to a drug “defined in [§802].” The ambiguity of “connect” leaves criminal immigration practitioners still wondering, in the wake of Descamps, whether state drug convictions which incorporate other statutory lists of substances are to be considered overbroad and indivisible or whether they would be deemed divisible. If divisible, drug and drug paraphernalia offenses, like the Kansas statute at issue here, could still cause removal if the charging document or other part of the limited record of conviction contains reference to a federally controlled drug. In the meantime, immigrant defendants and their criminal counsel would be wise to plead guilty to such paraphernalia offenses only if the record is washed of any reference to any federally controlled drug.

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