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Supreme Court revisits immigration consequences of state drug convictions

In Ohio, there are two means of terminating a marriage. The first is where one party files a Complaint for Divorce against the other party, which charges them with a “statutory ground” for divorce in the State of Ohio. This is like any other lawsuit: there is a Plaintiff, and a Defendant, and what the Complaint is requesting is that the Court resolve all issues in the marriage, including the termination thereof, the division of marital property, payment of debts, parenting and support issues (if any), as well as any other issues which must be decided to accomplish a final resolution. Like any traditional lawsuit, a divorce can be “settled,” i.e., the parties can enter into a Separation Agreement (a contract that sets forth an agreement of the parties) after the filing of the Complaint. A Separation Agreement allows the parties to make their own determination of all of the issues, and, in addition, can potentially avoid long court hearings which can be both costly and time consuming. But, if no settlement were reached, ultimately there would be a trial before a Magistrate or Judge who would make the ultimate decisions in the case regarding any contested issues.  
 
The second means of accomplishing a termination of the marriage is a dissolution of marriage. In this method, both parties must enter into a “Separation Agreement” prior to filing any action with the Court. This Separation Agreement would address all the issues in the marriage, briefly outlined above. When the terms of the Separation Agreement have been finalized, and all covenants fulfilled, the parties then file a joint petition with the Court, requesting the dissolution of the marriage. This method provides for an orderly resolution of all matters and allows the parties to have more significant input in controlling their own destinies. In addition, in many cases, resolving the issues without the need for numerous trials in front of Magistrates and/or Judges saves the parties money, time, and expense.  

Mellouli v. Lynch, 575 U.S. ___ (2015), 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.

Petitioner, green card holder, plead guilty to and was convicted of a misdemeanor under a Kansas state law for possession of drug paraphernalia (a sock in which he had four unidentified orange tablets).  Petitioner was placed into removal/deportation proceedings pursuant to 8 U. S. C. §1227(a)(2)(B)(i), which authorizes deportation for noncitizens who have 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).” The Immigration Judge found that the paraphernalia conviction qualified as a conviction “relating to a controlled substance,” and ordered Petitioner deported.  The Immigration Judge’s decision was affirmed by the Board of Immigration Appeals (BIA), and the Eight Circuit denied the subsequent appeal pursuant to Mellouli’s Petition for Review.  The Supreme Court granted certiorari and reversed. 


The Supreme Court applied the “categorical approach” to determining whether Mellouli’s conviction was a deportable offense “relating to a controlled substance.”  The categorical approach “looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior . . . [and a] state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law.” Under this approach, “[a]n alien’s actual conduct is irrelevant to the inquiry, as the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute.”


Under the categorical approach, Mellouli was not deportable.  “At the time of Mellouli’s conviction, Kansas’ schedules of controlled substances included at least nine substances—e.g., salvia and jimson weed—not defined in §802. See Kan. Stat. Ann. §65–4105(d)(30), (31). The state law involved in Mellouli’s conviction, therefore . . . was not confined to federally controlled substances; it required no proof by the prosecutor that Mellouli used his sock to conceal a substance listed under §802, as opposed to a substance controlled only under Kansas law. Under the categorical approach . . .  Mellouli’s drug-paraphernalia conviction does not render him deportable. In short, the state law under which he was charged categorically “relat[ed] to a controlled substance,” but was not limited to substances “defined in [§802].””


Important notes: the Supreme Court’s holding in Mellouli differs from (and presumably overrules) a previous approach adopted by the BIA where, generally, all drug paraphernalia offenses “related to” a controlled substance.  Now, in order to constitute a deportable offense “relating to a controlled substance,” it would appear under Mellouli that the drug to which the paraphernalia related was a controlled substance as defined by Federal law.  See generally, 21 U. S. C. §802 for schedules.  In fact, the Supreme Court specifically held that “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].’”  And, under the categorical approach, also applied in Mellouli, it would further appear that the identity of the drug must arise either directly from the statute of conviction, or from the documents which are permitted to be reviewed under the “modified categorical” approach.


This latter holding is especially important from this case, as the Petitioner had admitted that the drug in the sock was Adderall, and Adderall is a controlled substance under both Federal and State law.  However, because that fact only arose from an admission, not from the statute or the record of proceedings, it did not fall within the range of reviewable information, and was thus excluded from consideration.  Thus, depriving portions of the record in the state court proceedings can potentially help the non-citizen in future removal proceedings. However, if the drug appears in the reviewable portion of the criminal proceedings, it may still be admissible in the removal proceedings.  Mellouli at 6, FN4.                      


The full text of the opinion can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf 

 

Today, June 1, 2015, the Supreme Court reversed the conviction of a man who had been put to trial for allegedly threatening and violent messages he had posted onto Facebook about his ex wife, among others.  On the basis of these allegations, Anthony Elonis was charged with counts of five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”  A jury returned a guilty verdict on 4 of 5 counts.  Elonis appealed unsuccessfully to the Third Circuit Court of Appeals, and later to the US Supreme Court.  The Court today reversed the conviction, finding that the "Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c)."  Chief Justice Roberts authored the opinion of the Court, which was joined by all Justices except J. Alito and J. Thomas, who dissented.  The full text of the opinion can be found here:

http://www.supremecourt.gov/opinions/14pdf/13-983_7l48.pdf  .

  

Supreme Court reverses "Facebook post" conviction

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