SCOTUS: State drug crime must relate to a drug on the federal controlled substances schedule to be basis for deportation

By Wisconsin State Public Defender

Jun 1, 2015

Mellouli v. Lynch, USSC No. 1034, 2015 WL 2464047 (June 1, 2015), reversingMellouli v. Holder, 719 F.3d 995 (8th Cir. 2013); Scotusblog page (including links to briefs and commentary)

Resolving a split between federal circuit courts of appeal, the Supreme Court holds that the statute providing for deportation based on a violation of a state drug crime “relating to a controlled substance” is limited to “controlled substance” listed in the federal controlled substances schedule under 21 U.S.C. § 802. Thus, the Eighth Circuit was wrong to hold that any drug offense triggers the removal statute, without regard to the appearance of the drug on a § 802 schedule.

Under 8 U.S.C. § 1227(a)(2)(B)(i), a noncitizen may be removed if he has been convicted of violating “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)….” Mellouli was deported under this statute after he was convicted under the Kansas drug paraphernalia statute based on charging documents that did not identify the drug involved in the offense. The definition of “controlled substances” in Kansas’s paraphernalia statute cites to the state’s schedules of controlled substance, but some drugs in the Kansas schedules aren’t on the federal schedules. (Slip op. at 2-5).

Mellouli argued his conviction record failed to specify the drug involved, and thus failed to prove he was guilty of a crime “relating to a controlled substance” under the federal schedules rather than one listed only on the Kansas schedules, but the Eighth Circuit held that any violation of the state paraphernalia law was categorically a violation of a law “relating to a controlled substance” for purposes of § 1227(a)(2)(B)(i) because there is a nearly complete overlap between the state and federal definitions of “controlled substance,” 719 F.3d at 1000.

The Supreme Court reverses. Reiterating that determining whether a state conviction renders a person deportable requires a “categorical” approach that “looks to the statutory definition of the offense of conviction, not on the particulars of an alien’s behavior” (slip op. at 6), the Court rejects the lower courts’ (and Bureau of Immigration Appeals’) conclusion that a paraphernalia conviction “relates to” any and all controlled substances, whether or not federally listed, because possession of paraphernalia is “associated with the drug trade in general.” 719 F.3d at 1000.

The historical background of § 1227(a)(2)(B)(i) demonstrates that Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug. …. The Government’s position here severs that link by authorizing deportation any time the state statute of conviction bears some general relation to federally controlled drugs. The Government offers no cogent reason why its position is limited to state drug schedules that have a “substantial overlap” with the federal schedules. …. A statute with any overlap would seem to be related to federally controlled drugs. Indeed, the Government’s position might well encompass convictions for offenses related to drug activity more generally, such as gun possession, even if those convictions do not actually involve drugs (let alone federally controlled drugs). The Solicitor General, while resisting this particular example, acknowledged that convictions under statutes “that have some connection to drugs indirectly” might fall within § 1227(a)(2)(B)(i). …. This sweeping interpretation departs so sharply from the statute’s text and history that it cannot be considered a permissible reading. (Slip op. at 13-14).

Based on a decision about the “relating to” language in another context, the Seventh Circuit already apparently required the conviction to relate to a federally listed substance, Desai v. Mukasey, 520 F.3d 762 (7th Cir. 2008). Thus, this decision would seem to work no change in circuit precedent. As for state practice, the decision means a conviction under Wisconsin’s drug paraphernalia statute, § 961.573, would not trigger § 1227(a)(2)(B)(i) unless the charging documents, plea agreement, and/or judgment make a connection between the paraphernalia and a substance listed in the federal controlled substances schedule.