Wednesday, November 26, 2014

Sock, Drugs, and Rock 'n Roll

Socks and drugs are before SCOTUS in January. Or, more precisely, drugs in socks (rock 'n roll provided by Buffalo Daughter). Guest blogger Michael Sharma-Crawford, an immigration attorney with the Kansas City firm Sharma-Crawford, is counsel of record in the case pending before SCOTUS, Mellouli v. Holder. The issue:
Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that 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) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.
From Michael, 

Moones Mellouli was a lawful permanent resident. He was arrested for DUI in April 2010. At the jail he was found to have a couple of pills in his sock. The jail “identified” the pills as Adderall and he was charged with trafficking contraband. A plea was negotiated to possession of drug paraphernalia (to wit: a sock) but no specific drug, only the Kansas Uniformed Controlled Substance Act was mentioned in the amended information.  

Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) is valid controlling authority in this factual scenario. As a lawful permanent resident, Mr. Mellouli was only subject to a ground of removability, thus the burden to prove removability belongs to DHS. Paulus holds that if the record of conviction is silent as to the drug and the state criminalizes drugs that are not included in the Federal schedule, removability cannot be proven. Documents which are admissible to determine the conviction are listed at 8 C.F.R. §1003.41.

DHS instituted removal proceedings. Using the police reports and the prior charging document the Immigration Court held that Mr. Mellouli was removable (those documents are not permitted pursuant to 8 C.F.R. §1003.41). The IJ ordered Mr. Mellouli removed and ignored Paulus as did the BIA in upholding the IJ’s decision. The 8th Circuit Court of Appeals upheld the BIA in deciding that despite Paulus’ explicit language, the Kansas conviction “relates to” a crime involving a controlled substance because it is “involving other conduct associated with the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). Moncrieffe v Holder seems to explicitly overrule such a broad brush approach to comparing criminal offenses to immigration consequences.

The question presented reverts to the original question in Paulus: does the government have to prove the drug for which the paraphernalia existed as a substance defined in 21 U.S.C. §802?

From the criminal side,

The ramifications of this case in criminal law have to do with proof. In Mellouli, as Michael describes, police reports and dismissed charging documents were  used to show the substance was Adderall. For ACCA or similar purposes, SCOTUS has, so far, limited the type of documents that can be used as proof when the modified categorical approach is applied. The Court talked about this last term in Des Camps, and will probably again this term in Johnson v. U.S., the sawed-off shotgun case. In Mellouli, the Court may also reach the question of whether a statute that "relates to" multiple substances is divisible in the first place.

Kate Evans at Federal Immigration Litigation Clinic at the University of Minnesota Law School picked up the case and filed for certiorari.

Thanks to Michael for guest blogging.

-- Melody

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