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Lory D. Rosenberg on Appeal Matters

Sock it to me, Supreme Court![1]

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What's up with the categorical approach?

What’s up with the Solicitor General’s insistence that -- even after Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) – the categorical approach, as clearly articulated by the Supreme Court, is not to be followed in construing a state drug paraphernalia conviction? Historically, and as undeniably revitalized by the Court’s 2013 opinions in Moncrieffe v. Holder, supra. and Descamps v. United States, 133 S.Ct. 2276, 2285 (2013), the controlling premise that in construing a conviction, it “is not what the offender actually did, but the crime of which he has been convicted,” enjoys wide acceptance.

The decision in Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), issued on October 28, 2013 by the United States Court of Appeals for the Eighth Circuit, stands in stark contrast to the Supreme Court’s recent clarifications in Moncrieffe and Descamps. Rather, the Eighth Circuit did its best to sidestep the categorical approach altogether and diverted a good portion of its decision to the “special circumstances” exception to the categorical approach. Cf. Nijahwan v. Holder, 557 U.S. 29, (2009). Relying onpre-Moncrieffe BIA precedent, Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (BIA 2009), the Eighth Circuit simply deferred to the BIA’s pre-Moncrieffe dismissal of Mellouli’s appeal, and held that Mellouli's “conviction for possession of drug paraphernalia involves drug trade in general and, thus, is covered under [8 U.S.C. § 1227(a)(2)(B)(i).”

This is a legally untenable position. Yet, it is the one that the Solicitor General will be arguing on Wednesday, January 14, 2015 when Mellouli’s petition is heard by the Supreme Court.

Enough with the “crime as defined,” what actually happened?

After Mr. Mellouli was arrested for DUI, deputies at the detention center discovered in Mellouli’s sock, four orange tablets bearing the inscription, “M Aphet Salts 30 mg.” The drug was Adderall, which is listed on both the Kansas and federal controlled substance schedules, and Mellouli had 4 tablets of it hidden in his sock when he was arrested.

Mellouli was charged with a level 6 felony of “trafficking in contraband in a jail,” but he did not plead guilty to this offense. The offense to which he actually pled guilty was misdemeanor possession of drug paraphernalia, in violation of Kan. Stat. Ann. § 21–36a09(b)(recodified at § 21–5709(b)), as charged in an amended complaint. The amended complaint did not identify the controlled substance Mellouli stored in his sock, which was deemed to be the “paraphernalia.”

Incidentally, if we are so interested in what Mr. Mellouli actually did, we should ask who puts 4 Adderall pills in his sock, gets drunk and then drives drunk in an effort to get arrested so he can engage in drug trafficking in jail? Plainly, Mellouli did not set out to engage in drug trafficking, as he initially was charged; what Mellouli actually did was to possess 4 Adderall tablets. If the categorical approach sometimes seems convoluted, just think about the criminal charges routinely lodged by law enforcement in relation to what happened. So much for dealing in actualities.

Ill-advised interpretations cannot stand

The crux of the matter is section 237(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(B)(i), which lists as deportable and subject to removal,

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt 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), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. Id. (emphasis added).

Mellouli’s position consistently has been that he is not removable under § 1227(a)(2)(B)(i) because the record of conviction does not identify the substance underlying his state paraphernalia conviction, making it impossible for the government to establish that the conviction is one relating to a controlled substance as defined in 21 U.S.C. § 802 As in Matter of Paulus, 11 I. & N. Dec. 274, 276 (BIA 1965), where the BIA concluded that Paulus was not deportable because his conviction could have involved a substance that was not a narcotic drug under federal laws, the substance involved in Mellouli’s paraphernalia conviction may not be a controlled substance under federal laws.

The Supreme Court has declared that the role of a court in determining the nature of a conviction for purposes of deciding whether it amounts to an immigration violation, is to construe the statute of conviction with respect to “what the state conviction necessarily involved.” Moncrieffe v. Holder, supra. This is a technical exercise that relies on the “categorical approach,” in which a court looks first to the statutory language in the statute of conviction to determine the minimum conduct that would support a conviction. Only “when a statute lists multiple, alternative elements, and so effectively creates ‘several different crimes,’” should a court look beyond the statute to the record of conviction. Descamps v. United States, 133 S.Ct. at 2285, quoting Nijahwan v. Holder, supra.

The ground of deportability involving offenses “relating-to” a federal controlled substance calls for differentiating those state controlled substance convictions that are less serious than those defined in 21 U.S.C. section 802, or that may not come within the precise language of the statute. When the record of conviction contains no information indicating the crime of which the offender was convicted, there is no basis on which to conclude that it was one relating to a controlled substance.

Timing may be everything

Timing should make a difference in assessing Mr. Mellouli’s arguments, as well as the disposition of his appeal to the BIA. In particular, the BIA decision under review by the Eighth Circuit was issued prior to the Supreme Court’s clarifying discussion of the categorical approach in Moncrieffe v. Holder, supra. The Supreme Court’s decisive opinion in Moncrieffe should have given the Eighth Circuit pause in reviewing Mellouli’s petition in 2013, but there is no indication that it did.

Rather than following the categorical approach outlined in Moncrieffe, the Eighth Circuit ruled that it would adopt BIA’s categorical reading of the “relating to” provision in § 1227(a)(2)(B)(i). The Eighth Circuit thus adopted the BIA’s rejection of the well-established premise that a drug paraphernalia conviction is not “relating to” a federal controlled substance within the meaning of § 1227(a)(2)(B)(i) unless the conviction identifies a particular controlled substance with which the paraphernalia was used. Moreover, the Eighth Circuit rejected Mellouli’s Paulus argument, contriving an unfounded rationale to explain why the BIA failed to follow or distinguish Paulus in Mellouli’s appeal. The circuit court’s deference to the BIA’s reading of the statute is inappropriate when the BIA’s interpretation on its face fails to give meaning to the careful distinctions drawn by Congress in defining federal controlled substance offenses.

Clinging to 2009 agency decisions that misconstrue the statutory language in adjudicating Mellouli’s petition for review, is ill-advised. Ignoring the categorical approach in the aftermath of the Supreme Court’s 2013 Moncrieffe and Descamps opinions cannot be justified.

Enough already

Under the rubric of adhering to the reasonable interpretation of the BIA in Matter of Martinez Espinoza, supra, the circuit court endorsed an overbroad approach that encompasses all crimes involving paraphernalia as being “related to” a federal controlled substance without regard to whether it is so classified. Id. (“we have affirmed the BIA's categorical determination that Mellouli's drug paraphernalia conviction was within § 1227(a)(2)(B)(i), without regard to whether the paraphernalia was used in connection with a federally scheduled drug.”)

If there was any legitimate basis, prior to 2013, to question the applicability of the categorical approach, it no longer exists. The Supreme Court’s emphasis on the minimum conduct necessary to support a conviction being dispositive of its nature has laid to rest any argument limiting the applicability of the categorical approach to cases such as Mr. Mellouli’s, Moncrieffe v Holder, supra. The minimum conduct necessary cannot be determined by abandoning the categorical approach and embracing an unauthorized, catch-all “drug trade” classification. Notwithstanding the BIA’s ill-conceived 2009 decision, the categorical approach may not be ignored when the question is whether a conviction relates to or does not relate to a federal controlled substance as defined by 8 U.S.C. § 1227(a)(2)(B)(i).

Indeed, as Jennifer Lee Koh states so succinctly: “[t]he Eighth Circuit’s exasperation with the categorical approach does not justify its flawed interpretation of the law.” Koh, J, Rethinking Removability for Possession of Drug Paraphernalia (aka a sock), http://crimmigration.com/2015/01/13/...ia-aka-a-sock/. Let's hope the Supreme Court agrees.



[1]A Nixon-era, late 60’s expression used in different contexts to mean give it to me, let me have it, e.g. Goldie Hawn would say "Sock it to me," on the TV show, Rowan and Martin's Laugh-inThe Isely Brothers sang, "I can't tell you who to sock it to." Urban Dictionary, http://www.urbandictionary.com/defin...=sock+it+to+me. One of the lines in the Otis Redding song “Respect” as sung by Aretha Franklin who added the line, “Sock it to me, sock it to me” to the song. http://www.shmoop.com/respect/lyrics.html

(c) 2015. All rights reserved. Lory D. Rosenberg

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Updated 01-14-2015 at 07:20 PM by Lrosenberg

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