Moones Mellouli & the Unholy Relic: Why A Generic Paraphernalia Conviction Under a State Law Should Not Be A Deportable Offense
By Craig Shagin
The quip is now common: Deportation is a practice of traffic court procedures with death penalty consequences. The Mellouli case illustrates the first part of this comment. It is my hope the Supreme Court will provide some shock therapy to the bullying, high speed, low thought process of deporting lawful permanent residents from the United States. The oral arguments are to be heard on Wednesday, January 14, 2015. I shall be listening with particular attention to the Court’s sensitivity to just how aggressive the Board of Immigration Appeals (BIA) has become in giving imaginative expansive readings to an already draconian statute—not to interpret statutes against deportation but to find in its favor.
[This essay is part of an online symposium on crImmigration.com addressing Mellouli v. Holder. For other contributions, visit the symposium introduction here.]
The issue is straight forward. The INA renders removable “[a]ny alien who at any time after admission is convicted of a violation of (or a conspiracy to violate) any 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)….” INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Most states control substances other than those as defined in section 802 of Title 21. The lists are close, but not identical to each other.
Two cases came to the circuit courts in 2013 questioning whether a conviction for possession of drug paraphernalia under a state law was a removable offense under § 1227(a)(2)(B)(i) when DHS failed to prove that the substance used in connection with the paraphernalia was itself defined in section 802 of title 21, a so-called generic paraphernalia conviction. The Court of Appeals for the Eighth Circuit ruled in Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013) that Mr. Mellouli’s conviction for drug paraphernalia under Kansas law was a conviction for “a violation of (or a conspiracy to violate) any 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)….,” § 1227(a)(2)(B)(i), even when the government failed to establish the identity of the controlled substance used in connection with the paraphernalia.
On August 23, 2013, after re-argument en banc, the Third Circuit came to the opposite conclusion. In Rojas v. Attorney General, it ruled that such a conviction is not a crime relating to a controlled substance as defined under section 802. 728 F.3d 203 (3d Cir. 2013) (en banc). Despite having been alerted to the Mellouli decision by 28j letters that the parties submitted, the Third Circuit was not persuaded. This split between the Eighth and Third Circuits set up the current appeal by Mr. Mellouli before the United States Supreme Court.
Having argued, along with Tracey Hubbard, on behalf of Mr. Rojas before the Third Circuit, I am intensely curious in the arguments and outcome of Mellouli. Ms. Hubbard and I were somewhat bemused that the issue needed a circuit court resolution. We naively thought the proper resolution axiomatic and were surprised that the IJ did not terminate Mr. Rojas’s deportation case immediately. After all, the statute says “relating to a controlled substance (as defined in section 802 of Title 21)….” Isn’t it obvious then that the controlled substance must be “as defined in section 802 of Title 21? We were even more surprised that the first panel that heard the case did not come to that resolution. It then went en banc. Now the same issue is to be decided by the Supreme Court. I seem to possess a remarkable inability to see the government’s argument. The Mellouli briefs have not corrected this blindness.
The government argues in Mellouli what it argued in Rojas: that “relating to” is a broad concept that covers all manner of controlled substance related convictions and tries by a convoluted linguistic argument to read “as defined under section 802 of title 21” out of the statute. The Attorney General argues that aliens who are convicted under “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances are laws ‘relating to’ federally controlled substances.” They tie their argument to the federal definition not by applying it directly to the alien’s particular conviction for some type of controlled substance, but argue that because state laws “based” on the Uniform Controlled Substances Act are intended to be an interlocking trellis with federal drug laws and, therefore, satisfy the “broad common-sense meaning of the ‘relating to’ requirement because ‘they stand in some relation’ to…federally controlled substances.” This seems to me linguistic muck.
First, the issue in these cases is not the “relating to” clause but the meaning of “as defined under section 802 of title 21.” The latter clause seems clear. As broad a concept as “relates” may be, the conviction still must relate to a federally defined controlled substance. The statute does say, “a controlled substance (as defined in section 802 of Title 21)”. It does not say….“or something pretty close thereto.” The Supreme Court should not so read it.
Moreover, the government ignores the growing disparity between the states and the federal government in controlling substances. While the core substances that are commonly thought of as controlled—heroin, cocaine, methamphetamine—seem universally controlled; several others are not. Indeed, far from being congruent, state and federal lists of controlled substances are at times quite contradictory. Marijuana, which is a Schedule I federal controlled substance, is now legal either for medical purposes or pleasure in Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington. Many states outlawed various synthetic cannaboids a year or more before the federal government. Khat, betel nuts and other plants have received disparate treatment as well. Some foreign countries outlaw substances that we consume every day without apparent side effects. The United Arab Emirates, for instance, outlaws poppy seeds—even on bagels—and morning glory plants.
There are many good reasons that Congress would have to so define the controlled substances to mean only those on the federal list. Congress may not respect the determination of controlled substances by other jurisdictions: Did Congress really mean to treat one convicted of possessing a poppy seed bagel the same as one who possesses heroin? Since drug possession is essentially a regulatory offense, Congress may well have concluded that for purposes of establishing a uniform predictable basis for removal, the federal law was appropriate with those minor variations in the states not to be used as a basis for removal. In any event, Congress wrote a statute which on its face requires that the substance at issue be a federally controlled substance. Hence, far from being an absurd reading, it seems a logical one.
The other argument offered up by the government strikes me as even more tenuous. This is that while possessory offenses may require that the substance be federally controlled, a conviction for possession of drug paraphernalia need not be. This is because “state drug paraphernalia statutes criminalize tools of drug consumptionand distribution that can be used with federally controlled drugs as well as state-controlled substances” and hence, “even individual violations under those statutes uniformly bear relationship to federally controlled drugs.” Ergo, “paraphernalia crimes are offenses relating to the drug trade in general” and are not limited to any particular substance. The government looks to the BIA’s decision in Matter of Martinez Espinoza, 25 I & N 118 (BIA 2009), for this proposition. This argument as well was raised and lost in Rojas.
Thus, the argument goes, if an individual is convicted of possessing a substance that Pennsylvania concludes is to be controlled, say a skin cream or cosmetic containing propylhexadrine, but the federal government does not, he has not been convicted of a crime relating to a controlled substance as defined under section 802 of title 21. However, if this cream was in a jar, he may be deported for possessing drug paraphernalia for the exact same conduct. This absurdity of the result is not the most powerful argument against it. The absurdity of the fundamental premise—that drug paraphernalia constitutes the tools of drug consumption and distribution—is. The idea that paraphernalia covers the tools of the drug trade is an imaginative mental construct that bears no relationship to reality: Not generally and not in Mr. Mellouli’s case.
Kansas, like many states, defines drug paraphernalia to mean “all equipment and materials of any kind which are used, or primarily intended or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance and in violation of this act.” Kan. Stat. 21-36a01. This expands the common meaning of the word paraphernalia from things generally required for drug use, say a hypodermic needle, to things that ordinarily have nothing per se to do with drug use. Hence, Mr. Mellouli now finds himself before the Supreme Court because he pleaded guilty to possession of “drug paraphernalia” when a substance controlled under Kansas law was found in his sock. His sock seems to me more an unholy relic than a “tool of the drug trade.” Socks are neither designed nor intended to be tools of the drug trade. Mr. Mellouli’s possession of socks only became criminal because of what he did with them—he held a Kansas controlled substance in it. He should no more be deported for possessing a pair of socks that held poppy seeds than he should be for possessing a simple pair of socks. Only when those socks were used in connection with a controlled substance as defined under section 802 of title 21, could they arguably be viewed as a crime relating to a controlled substance under the INA.
The decision that the government looks to for support, Matter of Martinez Espinoza, 25 I & N 118 (BIA 2009), is really of no direct help to the Attorney General. First, Martinez Espinoza was a case of inadmissibility under section 212(a)(2)(A)(i)(II) of the Act and not of deportability. The difference is critical. An alien has the burden of proving admissibility; the government deportability. More to the point, the particular paraphernalia there was a pipe used for the ingestion of marijuana. The substance used in connection with the paraphernalia was indeed a controlled substance as defined under 802 of title 21. This shows, among other things, that in cases involving paraphernalia, the substance used in connection with it is known and provable by the government. Indeed, in Pennsylvania the factual basis for a plea must be set forth and in the case of paraphernalia, the particular substance used in connection with the offending object must be identified. The Rojas case in this regard involved sloppy police work; sloppy criminal court work; matched by sloppy DHS work. It should not be the function of the IJ or BIA to make up for this deficit of competence by guessing what the substance might have been.
Perhaps the most important issue that is lurking in this case is not in the statute itself, but the type of reading immigration statutes are to be given. Even if the text of INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), was found to be unclear, courts are supposed to abide by the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” Lee v. Ashcroft, 368 F.3d 218, 225 (3d Cir. 2004) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)). Like the rule of lenity in criminal cases, this canon has long been recognized as an “accepted principle[] of statutory construction” in the field of immigration law, Costello v. INS, 376 U.S. 120, 128 (1964), due to the fact that “deportation is a drastic measure and at times the equivalent of banishment or exile.” Id. (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)); see also Marincas v. Lewis, 92 F.3d 195, 200 n.6 (3d Cir. 1996) (noting that the Supreme Court has “acknowledged a special canon of statutory construction whereby ambiguities in deportation statutes are to be construed in favor of the alien”) (citing Cardoza-Fonseca, 480 U.S. at 449).
I have yet to see this principle actually applied by an immigration court. It is contemptuously ignored. Indeed, in Rojas, the Attorney General argued in his brief, “The rule of lenity (as it is called in the criminal context) does not apply in immigration cases generally and certainly not when the statute’s language is plain.” Government Brief at 22. I have also heard government lawyers argue that Chevron deference trumps the rule. I don’t see how it is possible that an agency interpretation of a statute can be reasonable that so blithely ignores the canons of construction as set forth by the Supreme Court. I wish the Court would remind the Attorney General that this is the rule of construction and yes, the BIA and IJs are also to apply it.
There are many reasons for traffic court procedures in immigration court. The traffic court volume of cases; the lack of legal representation; the lack of meaningful discovery; the use of televideo hearings; the lack of dignity and respect the aliens get in a detained docket proceeding appearing as they do in the worn out orange jumpsuits of prisoners; and the inquisition nature of the hearings when some judges insist on questioning aliens even before their counsel have been able to present the case. Another is simply the means by which deportability for a criminal conviction is established. In the York, Pennsylvania Immigration Court, for instance, it is commonplace for the government to submit police affidavits and police complaints and argue from them the nature of the conviction. Meanwhile the actual record of conviction, the Taylor documents of the statute under which a defendant was convicted, the criminal information, and the plea colloquy may be ignored. Similarly, most presentations are not about the least culpable conduct under the elements of a statute, but the innuendo suggested by the non-Taylor documents as to what the alien did. The alien may thoroughly disagree with this presentation, but he is unable to present evidence to combat the suggestions in those documents. He, of course, shouldn’t have to.
The Attorney General is doing the same thing in its brief to the Supreme Court. It is citing to a police report for a supposed “admission” by Mellouli that the substance in his sock was Adderall—a federally controlled substance. Also, in that report was evidence that at the time of the supposed admission, Mr. Mellouli was intoxicated, and quite possibly did not know what he was saying let alone the accuracy thereof. In any event, this is not what he admitted when he entered his plea of guilt. Looking to comments in police reports as clear and convincing evidence would add yet another traffic court procedure to the flimsy justice already at work in the bowels of the immigration court system.
Craig R. Shagin is an immigration lawyer practicing in Harrisburg, Pennsylvania. He is graduate of Haverford College (1977) and Villanova University School of Law (1980). He, along with Tracey Hubbard, argued Rojas v. Attorney General before the Third Circuit.
