To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?
Lower court opinion: Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013).
This case will be of interest primarily to lawyers handling immigration cases, especially because it will resolve a circuit split concerning an issue on which the Seventh Circuit has (impliedly) taken a side. But it will also assist state court practitioners in advising clients about the potential immigration consequences of a drug paraphernalia conviction under § 961.573.
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)….” Regarding removal based on a state conviction for possessing drug paraphernalia, the circuits are split on whether the paraphernalia must be related to a substance listed in the federal Controlled Substances Act, or whether the paraphernalia can relate to a substance listed only by the state’s statutes governing controlled substances. The issue arose in this case because Mellouli, an immigrant with permanent resident status, was convicted under the Kansas drug paraphernalia statute. 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. When the federal government sought to use this conviction to remove Mellouli under § 1227(a)(2)(B)(i), he 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.
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 Ninth Circuit has taken the same view as the Eighth, but the Third Circuit disagrees, explicitly rejecting the Eighth Circuit’s decision in this case and holding that the state paraphernalia conviction must indicate it was related to a federally controlled substance, Rojas v. Att’y General, 728 F.3d 203, 205, 209-10, 217-19 & n.18 (3rd Cir. 2013) (en banc). Based on a decision about the “relating to” language in another context, the Seventh Circuit would also apparently require the conviction to relate to a federally listed substance, Desai v. Mukasey, 520 F.3d 762 (7th Cir. 2008).
By resolving this divergence of opinion about § 1227(a)(2)(B)(i), the decision in this case will confirm (or overturn) the Third and Seventh circuits’ approach and will settle whether a Wisconsin paraphernalia conviction will be grounds for removal if it doesn’t specify the drug, or if it specifies a drug listed only under Wisconsin law (if there are any: On Point hasn’t checked).