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Supreme Court Rules That Only Substances Controlled Under § 802 May Trigger Removal

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The Supreme Court has ruled that only substances controlled by § 802 trigger removal.  In the case of Moones Mellouli, members of the Supreme Court debated under what circumstances § 1227(a)(2)(B)(i) may trigger deportation.  Mellouli, a lawful permanent resident, was arrested for driving under the influence in 2010. During a post arrest search in a Kansas detention facility, four unnamed orange tablets were discovered hidden in Mellouli’s sock.  Mellouli identified the tablets as Adderall, an amphetamine based prescription drug used to treat attention deficit hyperactivity disorder.  He did not have a prescription for the Adderall.  Ultimately, Mellouli pleaded guilty to possession of drug paraphernalia, a misdemeanor, and was subsequently sentenced to probation.

Months after successfully completing his probation, Mellouli was arrested by Immigration and Customs Enforcement officers.  They claimed Mellouli was deportable under § 1227(a)(2)(B)(i) based on his prior paraphernalia possession conviction.  Mellouli was deported in 2012 preceding an immigration judge’s order affirmed by the Board of Immigration Appeals (BIA).  The Supreme Court reviewed and overturned the ruling citing § 802.  § 802 defines a “controlled substance” as a “drug or other substance included in one of five federal schedules”.

A state conviction triggers removal only if the underlying crime falls within a category of offenses defined by federal law.  In coming to its decision, the Supreme Court looked to the BIA’s approach in Paulus, a California case involving narcotics that were controlled by California law but not listed under federal law.  In Paulus, the BIA concluded that an alien’s California conviction for offering to sell an unidentified narcotic was not a deportable offense due to the fact that it was not a federally controlled substance.  In applying the Paulus analysis, the Supreme Court concluded that Mellouli was not deportable.  Analogous to Paulus, the Adderall found in Mellouli’s sock was not a federally controlled substance under § 802 and therefore did not trigger deportation under § 1227(a)(2)(B)(i).  In coming to a decision, the Supreme Court expressed fear that a broad reading of § 1227(a)(2)(B)(i)’s text may lead to consequences congress  would not have intended.  Thus, construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance” for removal purposes to the substances controlled under  § 802.  Therefore, 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.

Beach-Oswald applauds the Supreme Court’s decision and recognizes this ruling as a small victory for immigrants. This step in the right direction means that the BIA can no longer use their discretion in triggering deportation in situations where one would have never known that §1227(a)(2)(B)(i) applied.

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