Supreme Court Holds Drug Paraphernalia Offenses Do Not Always Trigger Removal
On June 1, 2015, the Supreme Court ruled on a case relating to a state court conviction for drug paraphernalia – in this case a sock containing Adderall tablets – and whether that was sufficient to remove a lawful permanent resident. Mellouli v. Lynch, available at http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf. The Department of Homeland Security issued a Notice to Appear (NTA) charging that Moones Mellouli was removable because he had been “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).” INA § 237(a)(2)(B)(i). Mellouli argued that DHS could not prove the charge because the relevant documents did not show that he was convicted of any offense related to a federally controlled substance. He was able to make this argument because Kansas’s list of illegal drugs includes more substances than the federal list. DHS argued that paraphernalia (which means items like needles, pipes, or containers that are used in connection with drugs) relates to all drugs in general, and that they did not need to prove whether the conviction involved a substance on the federal list.
The Board of Immigration Appeals (BIA) ordered Mellouli’s removal based on its precedent in Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). Martinez-Espinoza was a previous BIA case that agreed that paraphernalia “relates to” all controlled substances with which the object can be used. Therefore, the Board held, DHS need not prove that any individual paraphernalia conviction relates to a federally controlled substance. The Supreme Court disagreed and found that Mellouli should not have been deported and that Matter of Martinez-Espinoza must be overruled. In its decision, the Supreme Court emphasized that the INA specifically references the federal drug schedule. The Court held that the BIA was not free to ignore such a clear reference to federally controlled drugs.
The main lesson of Mellouli v. Lynch is that if a state punishes people for more types of drugs than federal law, then a drug paraphernalia conviction does not automatically trigger removal. Rather, DHS must prove, using the “record of conviction” only, that the paraphernalia conviction relates to a federally controlled substance. It should be noted, however, that if the noncitizen bears the burden of proof, Mellouli may not apply in the same way. Applicants for any immigration benefit, as well as anyone seeking re-entry into the United States, should not necessarily rely on Mellouli as a guarantee that their applications will be approved if they have a paraphernalia conviction.