__ U.S. __ (2015), 13-1034, Mellouli v. Lynch

Docket Nº:13-1034
Citation:__ U.S. __, 135 S.Ct. 1980, 192 L.Ed.2d 60, 83 U.S.L.W. 4382
Opinion Judge:GINSBURG, JUSTICE.
Party Name:MOONES MELLOULI, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL
Attorney:Jon Laramore argued the cause for petitioner. Rachel P. Kovner argued the cause for respondent.
Judge Panel:GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting.
Case Date:June 01, 2015
Court:United States Supreme Court
SUMMARY

Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance,” consisting of a sock in which he had placed four unidentified orange tablets. An Immigration Judge ordered him deported under 8 U.S.C. 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a... (see full summary)

 
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Page __

__ U.S. __ (2015)

135 S.Ct. 1980, 192 L.Ed.2d 60, 83 U.S.L.W. 4382, 25 Fla.L.Weekly Fed. S 306

MOONES MELLOULI, PETITIONER

v.

LORETTA E. LYNCH, ATTORNEY GENERAL

No. 13-1034

United States Supreme Court

June 1, 2015

Argued: January 14, 2015.

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Reversed.

SYLLABUS

[135 S.Ct. 1981] [192 L.Ed.2d 62] Petitioner Moones Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia " to . . . store [or] conceal . . . a controlled substance." Kan. Stat. Ann. § 21-5709(b)(2). The sole " paraphernalia" Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing Mellouli's misdemeanor conviction, an Immigration Judge ordered him deported under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien " convicted of a violation of . . . any law or regulation of a State, the United States, or [135 S.Ct. 1982] a foreign country relating to a controlled substance (as defined in section 802 of Title 21)." Section 802, in turn, limits the term " controlled substance" to a " drug or other substance" included in one of five federal schedules. 21 U.S.C. § 802(6). Kansas defines " controlled substance" as any drug included on its own schedules, without reference to § 802. Kan. Stat. Ann. § 21-5701(a). At the time of Mellouli's conviction, Kansas' schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals (BIA) affirmed Mellouli's deportation order, and the Eighth Circuit denied his petition for review.

Held : Mellouli's Kansas conviction for concealing unnamed pills in his sock did not trigger removal under § 1227(a)(2)(B)(i). Pp. 5-14.

(a) The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien's [192 L.Ed.2d 63] conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now § 1227(a)(2)(B)(i). Matter of Paulus, 11 I. & N. Dec. 274, is illustrative. At the time the BIA decided Paulus, California controlled certain " narcotics" not listed as " narcotic drugs" under federal law. Id., at 275. The BIA concluded that an alien's California conviction for offering to sell an unidentified " narcotic" was not a deportable offense, for it was possible that the conviction involved a substance controlled only under California, not federal, law. Under the Paulus analysis, Mellouli would not be deportable. The state law involved in Mellouli's conviction, like the California statute in Paulus, was not confined to federally controlled substances; it also included substances controlled only under state, not federal, law.

The BIA, however, announced and applied a different approach to drug-paraphernalia offenses (as distinguished from drug possession and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N. Dec. 118. There, the BIA ranked paraphernalia statutes as relating to " the drug trade in general," reasoning that a paraphernalia conviction " relates to" any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Id., at 120-121. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in § 802.

The BIA's disparate approach to drug possession and distribution offenses and paraphernalia possession offenses finds no home in § 1227(a)(2)(B)(i)'s text and " leads to consequences Congress could not have intended." Moncrieffe

v. Holder, 569 U.S. __, __, 133 S.Ct. 1678, 185 L.Ed.2d 727, 744. That approach has the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA's interpretation is owed no deference under the doctrine described in Chevron U.S. A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694. Pp. 5-11.

(b) The Government's interpretation of the statute is similarly flawed. The Government argues that aliens who commit [135 S.Ct. 1983] any drug crime, not just paraphernalia offenses, in States whose drug schedules substantially overlap the federal schedules are deportable, for " state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws 'relating to' federally controlled substances." Brief for Respondent 17. While the words " relating to" are broad, the Government's reading stretches the construction of § 1227(a)(2)(B)(i) to the breaking point, reaching state-court convictions, like Mellouli's, in which " [no] controlled substance (as defined in [§ 802])" figures as an element of the offense. Construction of § 1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of [192 L.Ed.2d 64] " controlled substance," for removal purposes, to the substances controlled under § 802. Accordingly, to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien's conviction to a drug " defined in [§ 802]." Pp. 11-14.

719 F.3d 995, reversed.

Jon Laramore argued the cause for petitioner.

Rachel P. Kovner argued the cause for respondent.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

OPINION

GINSBURG, JUSTICE.

This case requires us to decide how immigration judges should apply a deportation (removal) provision, defined with reference to federal drug laws, to an alien convicted of a state drug-paraphernalia misdemeanor.

Lawful permanent resident Moones Mellouli, in 2010, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia to " store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body." Kan. Stat. Ann. § 21-5709(b)(2) (2013 Cum. Supp.). The sole " paraphernalia" Mellouli was charged with possessing was a sock in which he had placed four orange tablets. The criminal charge and plea agreement did not identify the controlled substance involved, but Mellouli had acknowledged, prior to the charge and plea, that the tablets were Adderall. Mellouli was sentenced to a suspended term of 359 days and 12 months' probation.

In February 2012, several months after Mellouli successfully completed probation, Immigration and Customs Enforcement [135 S.Ct. 1984] officers arrested him as deportable under 8 U.S.C. § 1227(a)(2)(B)(i) based on his Kansas misdemeanor conviction. Section 1227(a)(2)(B)(i) authorizes the removal of an alien " convicted of a violation of . . . 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)." We hold that Mellouli's Kansas conviction for concealing unnamed pills in his sock did not trigger removal under § 1227(a)(2)(B)(i). The drug-paraphernalia possession law under which he was convicted, Kan. Stat. Ann. § 21-5709(b), by definition, related to a controlled substance: The Kansas statute made it unlawful " to use or possess with intent to use any drug paraphernalia to . . . store [or] conceal . . . a controlled substance." But it was immaterial under that law whether the substance was defined in 21 U.S.C. § 802. Nor did the State charge, or seek to prove, that Mellouli possessed a substance on the § 802 schedules. Federal law (§ 1227(a)(2)(B)(i)), therefore, did not authorize Mellouli's removal.

I

A

This case involves the interplay between several federal and state statutes. Section 1227(a)(2)(B)(i), a provision of the Immigration and Nationality Act, 66 Stat. 163, as amended, authorizes the removal of an alien " convicted of a violation of . . . 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), [192 L.Ed.2d 65] other than a single offense involving possession for one's own use of 30 grams or less of marijuana." Section 1227(a)(2)(B)(i) incorporates 21 U.S.C. § 802, which limits the term " controlled substance" to a " drug or other substance" included in one of five federal schedules. § 802(6).

The statute defining the offense to which Mellouli pleaded guilty, Kan. Stat. Ann. § 21-5709(b), proscribes " possess[ion] with intent to use any drug paraphernalia to," among other things, " store" or " conceal" a " controlled substance." Kansas defines " controlled substance" as any drug included on its own schedules, and makes no reference to § 802 or any other federal law. § 21-5701(a). 1 At the time of Mellouli's conviction, Kansas' schedules included at least nine substances not included in the federal lists. See § 65-4105(d)(30) (31) (33) (34) (36) (2010 Cum. Supp.); § 65-4111(g) (2002); § 65-4113(c)(1) (e) (f ) (2010 Cum...

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