Mellouli v. Lynch

Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance,” consisting of a sock in which he had placed four unidentified orange tablets. An Immigration Judge ordered him deported under 8 U.S.C. 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (defined in section 802 of Title 21).” Section 802 limits “controlled substance” to a “drug or other substance” included in federal schedules. Kansas defines “controlled substance” according to its own schedules, without reference to Section 802, and included substances not on the federal lists. The Board of Immigration Appeals affirmed. The Eighth Circuit denied a petition for review. The Supreme Court reversed. Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal. Under the categorical approach, a state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA’s reasoning, that there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in section 802, leads to the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The Court rejected the government’s argument that aliens who commit any drug crime in states whose drug schedules substantially overlap the federal schedules are deportable, because the state statutes are laws “relating to” federally controlled substances. To trigger removal under 1227(a)(2)(B)(i), the government must connect an element of the alien’s conviction to a drug defined in section 802. View "Mellouli v. Lynch" on Justia Law