Mellouli v. Lynch – Supreme Court Uses “Categorical Approach” To Limit Deportation for Possession of Drug Paraphernalia

The categorical approach must be used to determine whether a lawful alien is deportable for possession of drug paraphernalia, the U.S. Supreme Court ruled June 1 in Mellouli v. Lynch. The Court rejected a more sweeping approach used by the Board of Immigration Appeals (BIA).

The Court reversed the deportation of a lawful alien who had been convicted of possession of drug paraphernalia because, using the categorical approach, the state law he was convicted under was not directly connected to a controlled substance defined by federal law.

Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act authorizes 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), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” This section incorporates 21 U.S.C. 802, which limits the term “controlled substance” to drugs or substances in five federal schedules.

Moones Mellouli, a lawful permanent resident, pleaded guilty to the Kansas misdemeanor of possession of drug paraphernalia. The “paraphernalia” was a sock, in which Mellouli had four orange tablets.  Although neither the criminal charge nor plea agreement identified the controlled substance, the tablets were Adderall, a drug usually prescribed for attention-deficit hyperactivity disorder.  Adderall is a controlled substance under both federal and Kansas law.

Kansas law prohibited possession of drug paraphernalia to “store” or “conceal” a “controlled substance.”  Kansas law defined “controlled substance” as any drug included on its own schedules, and made no reference to Sec. 802 or any other federal law. Federal law criminalizes the sale of or commerce in drug paraphernalia, but does not criminalize possession alone.

The BIA and Eighth Circuit ordered Mellouli be deported.   They held that the Kansas paraphernalia conviction “relates to” a federal controlled substance because it is a crime associated with “the drug trade in general.”

The Supreme Court reversed. 

The Court noted that, historically, the “categorical approach” has been used to determine if an alien is removable under the immigration statute. “Because Congress predicated deportation ‘on convictions, not conduct,’ the approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior,” the Court explained.

Mellouli’s conviction was for possessing a sock containing an unnamed controlled substance.  The Kansas law was not confined to federally controlled substances.  Kansas’ schedules of controlled substances included at least nine substances not defined in Sec. 802. As a result, the Kansas law “required no proof by the prosecutor that Mellouli used his sock to conceal a substance listed under Sec. 802, as opposed to a substance controlled only under Kansas law,” the Court said. 

The Court held that under this categorical approach, Mellouli’s conviction does not make him deportable.  “[T]o trigger removal under Sec. 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug ‘defined in [Sec. 802],” the Court said. The Court held the BIA and Eighth Circuit erred in ruling that paraphernalia statutes relate to “the drug trade in general” and finding no need to show that the type of controlled substance involved is one defined in Sec. 802.   This approach is not supported by the text of Sec. 1227(a)(2)(B)(i), the Court said.

This approach also leads to incongruous results which Congress could not have intended, the Court added.  Under the BIA approach, minor paraphernalia possession offenses are treated more harshly than drug possession and distribution offenses, which trigger removal only if they necessarily involve a federally controlled substance.  By contrast, convictions for paraphernalia trigger removal whether or not they necessarily implicate a federally controlled substance.

Ironically, under the BIA approach, Mellouli would not be removable for the more serious offense of possession a controlled substance only under Kansas law, but is removable for possession a sock containing that substance, the Court said. Because the BIA approach makes “scant sense,” the Court held it was owed no deference by the federal courts.