The Immigration Judge must use the categorical approach when analyzing whether a conviction for a crime constitutes a ground of removability under the INA (Immigration and Nationality Act). The facts are irrelevant, only the minimum conduct required to meet each of the elements of the statute is important.

There is a difference between the means used to commit a crime, and the statutory elements required for a conviction. For example, in a drug offense, if the statute refers to “a controlled substance” as an element, it does not matter which drug the defendant possessed or sold, as long as the particular drug is listed as a controlled substance, so the particular drug is a means and not an element. However, this depends upon the particular state statute involved, as different states may view means and elements differently.

If the lists of drugs on the state controlled substances statute and the federal controlled substances statute at the time of the crime are not the same, there is no categorical match, and most likely the respondent cannot be found removable for a controlled substances conviction, depending upon whether the state statute is considered “divisible” or not.

In removal proceedings based on criminal convictions, the U.S. Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) held that the facts of what the respondent actually did that resulted in the criminal conviction are irrelevant. The Immigration Judge is not allowed to look at the underlying facts at all. Moncrieffe clarified that the immigration consequences of a prior conviction turn on a legal issue, which elements the conviction necessarily involved, with any ambiguity “construed in the noncitizen’s favor.” 133 S.Ct. at 1693. “The reason is that the[Immigration and Nationality Act] asks what offense the noncitizen was ‘convicted’ of,…not what acts he committed.” Id. At 1685.

In Mellouli v. Lynch, 135 S.Ct. 1980, 575 U.S. ___(2015), although the defendant had admitted to police that he had in his possession Adderall, a federally-controlled substance, because the conviction itself did not specify what substance he possessed and because the state controlled substances law was not an exact match with the federal controlled substances schedules, he was not convicted of a removable offense under the INA.

While Mellouli was convicted under state law prohibiting possession of drug paraphernalia, it did not matter that he actually possessed a federally-controlled substance, because the state law was not a categorical match with the federal controlled substances schedule at the time of his conviction. Thus, the categorical approach applies to drug convictions.

In Mellouli, the U.S. Supreme Court rejected the Government’s argument that all that is required is a “substantial overlap” between the federal schedules in 21 USC 802 and the state’s controlled substances schedule. Id at 12–14. The Supreme Court found that it was the state schedule at the time of conviction that was significant, not at the time of removal proceedings or any point later in the future. Id. at 3.

In Mellouli, the respondent admitted that the drug he had was Adderall. Adderall is a controlled substance under both federal and Kansas state law. Id. at 3-4. However, even though Mellouli admitted he had a federally controlled substance in his possession, the U.S. Supreme Court held that he had not been convicted of a controlled substance violation under U.S. immigration law, because the Kansas state drug schedule and the federal schedules were not a perfect match at the time of conviction, and because the state’s amended complaint did not include as an element a substance controlled under the federal schedules.

According to the Second Circuit in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), the court held that the particular substance in question is not an element of the offense of NYPL 220.31 (Criminal Sale of a Controlled Substance Fifth Degree) under New York state law, and that each separate controlled substance is not a separate offense.

In Harbin, the Second Circuit asked whether the offense was divisible or indivisible, and set out a procedure to determine this question. First, the Second Circuit looked at the text of the statute. The Second Circuit found that “a controlled substance” was an element of the statute, but not the particular drug, according to the statute’s plain meaning.

Second, the Second Circuit in Harbin looked at the statute’s penalty provisions. Because the penalties were the same regardless of which particular controlled substance was involved, that was another indication that the statute was indivisible.

Third, the Harbin court found that New York State case law did not help the government’s position. The Second Circuit in Harbin pointed out that the prosecutor must name the particular drug involved, so that the defendant 1) is on notice of the charges; and 2) is not at risk of being retried for the same incident, i.e. no double jeopardy. Thus, although the prosecutor must prove the particular drug involved, this is so one can determine to which class or schedule it belongs, and not because each specific drug is a separate offense. Id. at 66. Additionally, the government may have to prove the particular substance involved to show the chain of custody, not because each drug is a separate element. Id. at 66-67.

The Second Circuit made an analogy to murder cases, in which the government has to prove that there was a particular victim, e.g., John Smith, even though the victim’s identity, John Smith, is not an element of the crime, making it a separate crime from the murder of anyone else. Similarly, in drug cases, the government may be required to prove which drug was involved, even though each drug is not a separate element.

The analysis of criminal statutes and their immigration consequences is extremely complex and time-consuming, and reasonable people can differ on their interpretation. The litigation of these removal cases may end up taking many years. Another factor is that if the respondent (the person in removal proceedings) has other immigration issues such as immigration fraud or an illegal entry, this may make their situation even more complex. Those with a long immigration history (which is often the case with foreign nationals who have criminal issues) have an even more complex immigration situation.

However, there is hope for people with immigration issues and criminal convictions, given the decision of the Second Circuit in Harbin as well as recent decisions of the US Supreme Court in criminal immigration cases.

Copyright 2019 © Heidi J Meyers all rights reserved.