Mellouli v. Holder

• Decision Date: 28 October 2013
• Docket Number: No. 12–3093.,12–3093.
• Citation: 719 F.3d 995
• Parties: Moones MELLOULI, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

719 F.3d 995

Moones MELLOULI, Petitioner

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–3093.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 13, 2013.

Filed: July 9, 2013.

Rehearing and Rehearing En Banc Denied Oct. 28, 2013.^*

William Michael Sharma–Crawford (argued), Kansas City, MO, for petitioner.

Anthony Paul Nicastro (argued), USDOJ, OIL, Washington, DC, for respondent.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

Section 237(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a), lists classes of aliens lawfully present in this country who are removable (deportable) from the United States. One subsection provides:

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.

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that he is removable because his July 2010 conviction for violating a Kansas drug paraphernalia statute was a conviction “relating to a controlled substance” within the meaning of § 1227(a)(2)(B)(i). Mellouli argues on appeal, as he did to the BIA, that he is not removable because the state court record of conviction does not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. We have jurisdiction to review this issue of law. See Bobadilla v. Holder, 679 F.3d 1052, 1053 (8th Cir.2012), applying 8 U.S.C. § 1252(a)(2)(D). Although the question is not free from doubt, compareMoncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), with Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), we join our sister circuits that have upheld the BIA's application of the “relates to” provision in § 1227(a)(2)(B)(i) and deny the petition for review.

I. The Statutory Landscape

The government has the burden to establish removability by clear and convincing evidence. See8 U.S.C. § 1229a(c)(3)(A); Bobadilla, 679 F.3d at 1058. The primary issues presented by this appeal are whether the government must prove that a specific controlled substance defined in 21 U.S.C. § 802 was the basis for a state drug paraphernalia conviction, and if so, what evidence the government may use to prove that aspect of the conviction. In our view, proper resolution of these issues requires an understanding of a complex federal and state statutory universe.

Congress in the Controlled Substances Act of 1970 established five lengthy schedules of controlled substances, see21 U.S.C. § 812, and defined controlled substance as meaning a drug or precursor included in those schedules, see21 U.S.C. § 802(6), the statute cross-referenced in 8 U.S.C. § 1227(a)(2)(B)(i). That same year, the National Conference of Commissioners on Uniform State Laws approved the Uniform Controlled Substances Act, describing as its purpose:

The 1970 Uniform Act was designed to complement the federal Controlled Substances Act, which was enacted in 1970.... This Uniform Act was drafted to maintain uniformity between the laws of the several States and those of the federal government. It has been designed to complement the federal law and provide an interlocking trellis of federal and state law to enable government at all levels to control more effectively the drug abuse problem.

Unif. Controlled Substances Act (amended 1994), 9 U.L.A. 5, Pt. II. The Uniform Act has the same five schedules as 21 U.S.C. § 812. Nearly all States have adopted the Uniform Act. Some States added a small number of substances not listed on the federal schedules. In addition, not every State amended its schedules to adopt revised versions of the Uniform Act in 1990 and 1994, or to incorporate changes to the federal schedules over the years. Thus, the drugs listed on a State's schedules may not “map perfectly” with the federal schedules. In re Huerta–Flores, A092–444–014, 2010 WL 5808899 (BIA Aug. 27, 2010) (unpublished), quoting Luu–Le v. INS, 224 F.3d 911, 915 (9th Cir.2000). In that decision, the BIA noted that the Arizona and federal schedules at issue were identical except for the continued listing on Arizona's Schedule I of two drugs whose federal listing had expired.

Kansas adopted the Uniform Act in 1972. Kansas Schedules I–V, now appearing in Kan. Stat. Ann. §§ 65–4105 to 65–4113, list, for each controlled substance that is also a controlled substance under federal law, the corresponding code number from the federal schedules. Of the hundreds of substances currently listed, less than a handful have no federal code number. A controlled substance for purposes of Kansas criminal drug offenses means a substance listed in the Kansas Schedules I–V. Kan. Stat. Ann. § 21–5701(a). Thus, there is little more than a “theoretical possibility” that a conviction for a controlled substance offense under Kansas law will not involve a controlled substance as defined in 21 U.S.C. § 802. Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

At issue in this case is a Kansas drug paraphernalia conviction. These statutes, too, have a relevant history. In 1979, concerned that the availability of drug paraphernalia “has reached epidemic levels,” the Drug Enforcement Administration at the request of the President's Domestic Policy Council “prepared the Model Drug Paraphernalia Act ... as an amendment to the Uniform Controlled Substances Act.” ¹ Kansas adopted this Model Act in 1981; Mellouli was convicted of violating an amended version of that statute. Because many States in enacting drug paraphernalia criminal offenses have adopted the Model Act, the question whether a conviction for a particular State's drug paraphernalia statute “relates to” a federal controlled substance is not likely to involve relevant differences in state statutory language. See Luu–Le, 224 F.3d at 915 (Arizona Drug Paraphernalia law); Bermudez v. Holder, 586 F.3d 1167, 1168–69 (9th Cir.2009) (Hawaii); Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009) (California) United States v. Oseguera–Madrigal, 700 F.3d 1196, 1198–99 (9th Cir.2012) (Washington).

II. The BIA's Decision

Following Mellouli's April 2010 arrest for driving under the influence of alcohol, detention center deputies discovered four orange tablets in his sock bearing the inscription, “M Aphet Salts 30 mg.” Mellouli admitted the tablets were Adderall, a drug listed on both the Kansas and federal controlled substance schedules. He was charged with the level 6 felony of “trafficking in contraband in a jail.” On July 13, he pleaded guilty to the lesser offense charged in an amended complaint, misdemeanor possession of drug paraphernalia in violation of Kan. Stat. Ann. § 21–36a09(b), now recodified at § 21–5709(b). The amended complaint did not identify the controlled substance Mellouli stored in the paraphernalia, his sock.²

In Matter of Paulus, 11 I. & N. Dec. 274, 276 (BIA 1965), construing prior federal controlled substance and immigration laws, the BIA concluded that the alien was not deportable under then § 241(a)(11) of the INA ³ because his conviction for violating the Health and Safety Code of California “could have been for an offer to sell a substance which though a narcotic under California law is not a narcotic drug under federal laws [and therefore] we cannot say that the Service has borne its burden of establishing that [the alien] has been convicted of a violation of a law relating to narcotic drugs.”

In this case, Mellouli argued to the BIA, Paulus is controlling BIA authority, so a state drug paraphernalia conviction does not fall within § 1227(a)(2)(B)(i) unless the paraphernalia was connected to a federal controlled substance. Because the Kansas schedules include a few controlled substances not on the federal schedules, such as jimson weed, there is a possibility, however remote, that a Kansas drug paraphernalia conviction did not involve use in connection with a federal controlled substance. Mellouli further argued that this evidentiary issue must be decided using the “categorical” and “modified categorical” analysis applied by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599–602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), criminal cases interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e), an analysis often but not uniformly applied in interpreting various provisions of the INA. Here, the Kansas statutes and the only documents reflecting his Kansas conviction that may be considered in applying the modified categorical approach did not identify a particular controlled substance. Therefore, Mellouli's argument concluded, the government failed to prove by clear and convincing evidence that he was convicted of an offense “relating to a controlled substance (as defined in section 802 of Title 21).”

Adhering to its prior decision in Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (BIA 2009), the BIA rejected the initial premise underlying this complex argument—that a drug paraphernalia conviction is not “related to” a federal controlled substance within the meaning of § 1227(a)(2)(B)(i) unless the conviction identified a particular controlled substance with which the paraphernalia was used. As the BIA explained in Martinez Espinoza:

we have long drawn a distinction between crimes involving the possession or...