The BIA had long taken the position that drug paraphernalia convictions are controlled substance offenses if they are “associated with the drug trade in general.” See Matter of Espinoza, 25 I&N Dec. 118, 121 (BIA 2009). As I wrote in the book I released this month, Crimmigration Law, “In Mellouli v. Lynch, the Court held that a person is subject to removal under the controlled substance offense provision only if the government ‘connect[s] an element of the alien’s conviction to a drug’ listed in the federal [Controlled Substances Act]” (page 55).

And crimes involving the “drug trade” stretch so far as to include holding paraphernalia—something that isn’t punishable under federal law. Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009).Our amicus brief (that of the National Immigration Project of the National Lawyers Guild, with the National Association of Criminal Defense Attorneys and the Immigrant Defense Project) pointed out how these conflicting interpretations impact an immigrant defendant’s ability to make an informed plea. The Supreme Court in Padilla v. Kentucky required defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.

Under the BIA’s approach, possession of drug paraphernalia would automatically trigger removability, on the theory that paraphernalia offenses relate “to the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). 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.

The Court should rule that in order to impose deportation’s devastating effects on an individual for a past conviction, then the conviction must indeed meet each of the elements set forth by Congress in the statute, and that it is not sufficient to conclude that the conviction “relates to…the drug trade in general,” as the Board of Immigration Appeals has endorsed in recent years. Mellouli, 719 F.3d at 999 (citing Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009)).In the case of section 237, Congress clearly stated that the substance must relate to 21 U.S.C. § 802 and made no generalized reference to the global drug trade. The Court can and should require that DHS prove, in removal cases predicated upon possession of drug paraphernalia convictions, that the underlying conviction reflect a connection to a controlled substance regulated by federal law.Jennifer Lee Koh is an Associate Professor of Law and Director of the Immigration Clinic at Western State College of Law in Fullerton, California.

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.” Matter of Espinoza, 25 I&N Dec. 118, 121 (BIA 2009). Enter the Eighth Circuit.

The government also relies on the reasoning of the BIA’s decision in Matter of Martinez-Espinoza which held that convictions for possessing drug paraphernalia are not required to be related to any particular federally controlled substance because they “relate to the drug trade as a whole.” 25 I&N Dec. 118, 121 (BIA 2009).The probabilitiesI don’t expect the Court to abandon its clear, bright-line categorical analysis in favor of either of the catch-all theories offered by the government. The government’s arguments have no support in a plain reading of the statutory language or in the Court’s recent case law.

The 8th Circuit Court of Appeals upheld the BIA in deciding that despite Paulus’ explicit language, the Kansas conviction “relates to” a crime involving a controlled substance because it is “involving other conduct associated with the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). Moncrieffev Holderseems to explicitly overrule such a broad brush approach to comparing criminal offenses to immigration consequences.The question presented reverts to the original question in Paulus: does the government have to prove the drug for which the paraphernalia existed as a substance defined in 21 U.S.C. §802?

To determine which of these competing interpretations to adopt, the BIA looked at its interpretation of the phrase “single offense” in another context involving a lenient approach to possessing small amounts of marijuana—the waiver of inadmissibility available under INA § 212(h). The Board noted that in Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009), “we concluded…that the term ‘offense’ used in section 212(h) was best understood as ‘refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.’” Matter of Davey, 26 I&N Dec. at 39.