For more than a half century, it has required that a drug possession and distribution conviction involve a drug on the federal list before the government may rely on it to deport. Matter of Paulus, 11 I&N Dec. 274 (BIA 1965). But it has applied quite a different rule when the Board, and it alone, deems a state crime as related to the “drug trade” (language not found in the statute).

By contrast, the BIA would subject drug possession offenses to a categorical analysis, in which state statutes that criminalize a swath of substances broader than the federal schedule would not automatically lead to a removability finding. SeeMatter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014) (discussed on crImmigration.com here).

“Since 1965,” I explain in my book, “the BIA has steadfastly maintained that a state drug possession crime can result in deportation or exclusion only if the government shows that the conviction necessarily involved a substance punished by federal drug laws.” See Matter of Paulus, 11 I&N Dec. 274, 276 (BIA 1965).Mellouli threatens that longstanding limitation. Relying on the “relating to” language, the Board of Immigration Appeals concluded in 2009 that the controlled substance offense provision captures any “conduct associated with the drug trade in general.”

A plea was negotiated to possession of drug paraphernalia (to wit: a sock) but no specific drug, only the Kansas Uniformed Controlled Substance Act was mentioned in the amended information. Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) is valid controlling authority in this factual scenario. As a lawful permanent resident, Mr. Mellouli was only subject to a ground of removability, thus the burden to prove removability belongs to DHS.