Mellouli v. Lynch

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MELLOULI v. LYNCH, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 13–1034. Argued January 14, 2015—Decided June 1, 2015
Petitioner Moones Mellouli, a lawful permanent resident, pleaded
guilty to a misdemeanor offense under Kansas law, the possession of
drug paraphernalia “to . . . store [or] conceal . . . a controlled sub-
stance.” Kan. Stat. Ann. §21–5709(b)(2). The sole “paraphernalia”
Mellouli was charged with possessing was a sock in which he had
placed four unidentified orange tablets. Citing Mellouli’s misde-
meanor conviction, an Immigration Judge ordered him deported un-
der 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation
(removal) of an alien “convicted of a violation of . . . any law or regu-
lation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of Title 21).” Section
802, in turn, limits the term “controlled substance” to a “drug or oth-
er substance” included in one of five federal schedules. 21 U. S. C.
§802(6). Kansas defines “controlled substance” as any drug included
on its own schedules, without reference to §802. Kan. Stat. Ann.
§21–5701(a). At the time of Mellouli’s conviction, Kansas’ schedules
included at least nine substances not on the federal lists. The Board
of Immigration Appeals (BIA) affirmed Mellouli’s deportation order,
and the Eighth Circuit denied his petition for review.
Held: Mellouli’s Kansas conviction for concealing unnamed pills in his
sock did not trigger removal under §1227(a)(2)(B)(i). Pp. 5–14.
(a) The categorical approach historically taken in determining
whether a state conviction renders an alien removable looks to the
statutory definition of the offense of conviction, not to the particulars
of the alien’s conduct. The state conviction triggers removal only if,
by definition, the underlying crime falls within a category of remova-
ble offenses defined by federal law. The BIA has long applied the
categorical approach to assess whether a state drug conviction trig-
2 MELLOULI v. LYNCH
Syllabus
gers removal under successive versions of what is now
§1227(a)(2)(B)(i). Matter of Paulus, 11 I. & N. Dec. 274, is illustra-
tive. At the time the BIA decided Paulus, California controlled cer-
tain “narcotics” not listed as “narcotic drugs” under federal law. Id.,
at 275. The BIA concluded that an alien’s California conviction for
offering to sell an unidentified “narcotic” was not a deportable of-
fense, for it was possible that the conviction involved a substance
controlled only under California, not federal, law. Under the Paulus
analysis, Mellouli would not be deportable. The state law involved in
Mellouli’s conviction, like the California statute in Paulus, was not
confined to federally controlled substances; it also included substanc-
es controlled only under state, not federal, law.
The BIA, however, announced and applied a different approach to
drug-paraphernalia offenses (as distinguished from drug possession
and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N.
Dec. 118. There, the BIA ranked paraphernalia statutes as relating
to “the drug trade in general,” reasoning that a paraphernalia convic-
tion “relates to” any and all controlled substances, whether or not
federally listed, with which the paraphernalia can be used. Id., at
120–121. Under this reasoning, there is no need to show that the
type of controlled substance involved in a paraphernalia conviction is
one defined in §802.
The BIA’s disparate approach to drug possession and distribution
offenses and paraphernalia possession offenses finds no home in
§1227(a)(2)(B)(i)’s text and “leads to consequences Congress could not
have intended.” Moncrieffe v. Holder, 569 U. S. ___, ___. That ap-
proach has the anomalous result of treating less grave paraphernalia
possession misdemeanors more harshly than drug possession and
distribution offenses. The incongruous upshot is that an alien is not
removable for possessing a substance controlled only under Kansas
law, but he is removable for using a sock to contain that substance.
Because it makes scant sense, the BIA’s interpretation is owed no
deference under the doctrine described in Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 5–
11.
(b) The Government’s interpretation of the statute is similarly
flawed. The Government argues that aliens who commit any drug
crime, not just paraphernalia offenses, in States whose drug sched-
ules substantially overlap the federal schedules are deportable, for
“state statutes that criminalize hundreds of federally controlled
drugs and a handful of similar substances, are laws ‘relating to’ fed-
erally controlled substances.” Brief for Respondent 17. While the
words “relating to” are broad, the Government’s reading stretches the
construction of §1227(a)(2)(B)(i) to the breaking point, reaching state-
Cite as: 575 U. S. ____ (2015) 3
Syllabus
court convictions, like Mellouli’s, in which “[no] controlled substance
(as defined in [§802])” figures as an element of the offense. Construc-
tion of §1227(a)(2)(B)(i) must be faithful to the text, which limits the
meaning of “controlled substance,” for removal purposes, to the sub-
stances controlled under §802. Accordingly, to trigger removal under
§1227(a)(2)(B)(i), the Government must connect an element of the al-
ien’s conviction to a drug “defined in [§802].” Pp. 11–14.
719 F. 3d 995, reversed.
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.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1034
_________________
MOONES MELLOULI, PETITIONER v. LORETTA E.
LYNCH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 1, 2015]
JUSTICE GINSBURG delivered the opinion of the Court.
This case requires us to decide how immigration judges
should apply a deportation (removal) provision, defined
with reference to federal drug laws, to an alien convicted
of a state drug-paraphernalia misdemeanor.
Lawful permanent resident Moones Mellouli, in 2010,
pleaded guilty to a misdemeanor offense under Kansas
law, the possession of drug paraphernalia to “store, con-
tain, conceal, inject, ingest, inhale or otherwise introduce
a controlled substance into the human body.” Kan. Stat.
Ann. §21–5709(b)(2) (2013 Cum. Supp.). The sole “para-
phernalia” Mellouli was charged with possessing was a
sock in which he had placed four orange tablets. The
criminal charge and plea agreement did not identify the
controlled substance involved, but Mellouli had acknowl-
edged, prior to the charge and plea, that the tablets were
Adderall. Mellouli was sentenced to a suspended term of
359 days and 12 months’ probation.
In February 2012, several months after Mellouli suc-
cessfully completed probation, Immigration and Customs
Enforcement officers arrested him as deportable under 8
2 MELLOULI v. LYNCH
Opinion of the Court
U. S. C. §1227(a)(2)(B)(i) based on his Kansas misde-
meanor conviction. Section 1227(a)(2)(B)(i) authorizes the
removal of an alien “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).” We hold that Mellouli’s Kansas
conviction for concealing unnamed pills in his sock did
not trigger removal under §1227(a)(2)(B)(i). The drug-
paraphernalia possession law under which he was convicted,
Kan. Stat. Ann. §21–5709(b), by definition, related to a
controlled substance: The Kansas statute made it unlaw-
ful “to use or possess with intent to use any drug para-
phernalia to . . . store [or] conceal . . . a controlled sub-
stance.” But it was immaterial under that law whether
the substance was defined in 21 U. S. C. §802. Nor did
the State charge, or seek to prove, that Mellouli possessed
a substance on the §802 schedules. Federal law
(§1227(a)(2)(B)(i)), therefore, did not authorize Mellouli’s
removal.
I
A
This case involves the interplay between several federal
and state statutes. Section 1227(a)(2)(B)(i), a provision of
the Immigration and Nationality Act, 66 Stat. 163, as
amended, authorizes the removal of an alien “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), other
than a single offense involving possession for one’s own
use of 30 grams or less of marijuana.” Section
1227(a)(2)(B)(i) incorporates 21 U. S. C. §802, which limits
the term “controlled substance” to a “drug or other sub-
stance” included in one of five federal schedules. §802(6).
The statute defining the offense to which Mellouli
pleaded guilty, Kan. Stat. Ann. §21–5709(b), proscribes
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
“possess[ion] with intent to use any drug paraphernalia
to,” among other things, “store” or “conceal” a “controlled
substance.” Kansas defines “controlled substance” as any
drug included on its own schedules, and makes no refer-
ence to §802 or any other federal law. §21–5701(a).1 At
the time of Mellouli’s conviction, Kansas’ schedules in-
cluded at least nine substances not included in the federal
lists. See §65–4105(d)(30), (31), (33), (34), (36) (2010 Cum.
Supp.); §65–4111(g) (2002); §65–4113(d)(1), (e), (f ) (2010
Cum. Supp.); see also Brief for Respondent 9, n. 2.
The question presented is whether a Kansas conviction
for using drug paraphernalia to store or conceal a con-
trolled substance, §21–5709(b), subjects an alien to depor-
tation under §1227(a)(2)(B)(i), which applies to an alien
“convicted of a violation of [a state law] relating to a con-
trolled substance (as defined in [§802]).”
B
Mellouli, a citizen of Tunisia, entered the United States
on a student visa in 2004. He attended U. S. universities,
earning a bachelor of arts degree, magna cum laude, as
well as master’s degrees in applied mathematics and
economics. After completing his education, Mellouli
worked as an actuary and taught mathematics at the
University of Missouri-Columbia. In 2009, he became a
conditional permanent resident and, in 2011, a lawful
permanent resident. Since December 2011, Mellouli has
been engaged to be married to a U. S. citizen.
In 2010, Mellouli was arrested for driving under the
influence and driving with a suspended license. During a
postarrest search in a Kansas detention facility, deputies
discovered four orange tablets hidden in Mellouli’s sock.
According to a probable-cause affidavit submitted in the
——————
1 At the time of Mellouli’s conviction, Kan. Stat. Ann. §§21–5701(a)
and 21–5709(b) (2013 Cum. Supp.) were codified at, respectively, §§21–
36a01(a) and 21–36a09(b) (2010 Cum. Supp.).
4 MELLOULI v. LYNCH
Opinion of the Court
state prosecution, Mellouli acknowledged that the tablets
were Adderall and that he did not have a prescription for
the drugs. Adderall, the brand name of an amphetamine-
based drug typically prescribed to treat attention-deficit
hyperactivity disorder,2 is a controlled substance under
both federal and Kansas law. See 21 CFR §1308.12(d)(1)
(2014) (listing “amphetamine” and its “salts” and “iso-
mers”); Kan. Stat. Ann. §65–4107(d)(1) (2013 Cum. Supp.)
(same). Based on the probable-cause affidavit, a criminal
complaint was filed charging Mellouli with trafficking
contraband in jail.
Ultimately, Mellouli was charged with only the lesser
offense of possessing drug paraphernalia, a misdemeanor.
The amended complaint alleged that Mellouli had “use[d]
or possess[ed] with intent to use drug paraphernalia, to-
wit: a sock, to store, contain, conceal, inject, ingest, inhale
or otherwise introduce into the human body a controlled
substance.” App. 23. The complaint did not identify the
substance contained in the sock. Mellouli pleaded guilty
to the paraphernalia possession charge; he also pleaded
guilty to driving under the influence. For both offenses,
Mellouli was sentenced to a suspended term of 359 days
and 12 months’ probation.
In February 2012, several months after Mellouli suc-
cessfully completed probation, Immigration and Customs
Enforcement officers arrested him as deportable under
§1227(a)(2)(B)(i) based on his paraphernalia possession
conviction. An Immigration Judge ordered Mellouli de-
ported, and the Board of Immigration Appeals (BIA) af-
firmed the order. Mellouli was deported in 2012.
Under federal law, Mellouli’s concealment of controlled-
substance tablets in his sock would not have qualified as a
drug-paraphernalia offense. Federal law criminalizes the
sale of or commerce in drug paraphernalia, but possession
——————
2 See H. Silverman, The Pill Book 23 (13th ed. 2008).
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
alone is not criminalized at all. See 21 U. S. C. §863(a)–
(b). Nor does federal law define drug paraphernalia to
include common household or ready-to-wear items like
socks; rather, it defines paraphernalia as any “equipment,
product, or material” which is “primarily intended or
designed for use” in connection with various drug-related
activities. §863(d) (emphasis added). In 19 States as well,
the conduct for which Mellouli was convicted—use of a
sock to conceal a controlled substance—is not a criminal
offense. Brief for National Immigrant Justice Center et al.
as Amici Curiae 7. At most, it is a low-level infraction,
often not attended by a right to counsel. Id., at 9–11.
The Eighth Circuit denied Mellouli’s petition for review.
719 F. 3d 995 (2013). We granted certiorari, 573 U. S.
___ (2014), and now reverse the judgment of the Eighth
Circuit.
II
We address first the rationale offered by the BIA and
affirmed by the Eighth Circuit, which differentiates para-
phernalia offenses from possession and distribution of-
fenses. Essential background, in evaluating the rationale
shared by the BIA and the Eighth Circuit, is the categori-
cal approach historically taken in determining whether a
state conviction renders an alien removable under the
immigration statute.3 Because Congress predicated de-
——————
3 We departed from the categorical approach in Nijhawan v. Holder,
557 U. S. 29 (2009), based on the atypical cast of the prescription at
issue, 8 U. S. C. §1101(a)(43)(M)(i). That provision defines as an
“aggravated felony” an offense “involv[ing] fraud or deceit in which the
loss to the victim or victims exceeds $10,000.” The following subpara-
graph, (M)(ii), refers to an offense “described in section 7201 of title 26
(relating to tax evasion) in which the revenue loss to the Government
exceeds $10,000.” No offense “described in section 7201 of title 26,” we
pointed out, “has a specific loss amount as an element.” 557 U. S., at
38. Similarly, “no widely applicable federal fraud statute . . . contains a
relevant monetary loss threshold,” id., at 39, and “[most] States had no
6 MELLOULI v. LYNCH
Opinion of the Court
portation “on convictions, not conduct,” the approach looks
to the statutory definition of the offense of conviction, not
to the particulars of an alien’s behavior. Das, The Immi-
gration Penalties of Criminal Convictions: Resurrecting
Categorical Analysis in Immigration Law, 86 N. Y. U. L.
Rev. 1669, 1701, 1746 (2011). The state conviction trig-
gers removal only if, by definition, the underlying crime
falls within a category of removable offenses defined by
federal law. Ibid. An 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. Moncrieffe v.
Holder, 569 U. S. ___, ___ (2013) (slip op., at 5) (internal
quotation marks and alterations omitted).4
The categorical approach “has a long pedigree in our
Nation’s immigration law.” Id., at ___ (slip op., at 6). As
early as 1913, courts examining the federal immigration
——————
major fraud or deceit statute with any relevant monetary threshold,”
id., at 40. As categorically interpreted, (M)(ii), the tax evasion provi-
sion, would have no application, and (M)(i), the fraud or deceit provi-
sion, would apply only in an extraordinarily limited and haphazard
manner. Ibid. We therefore concluded that Congress intended the
monetary thresholds in subparagraphs (M)(i) and (M)(ii) to apply “to
the specific circumstances surrounding an offender’s commission of
[the defined] crime on a specific occasion.” Ibid. In the main,
§1227(a)(2)(B)(i), the provision at issue here, has no such circumstance-
specific thrust; its language refers to crimes generically defined.
4 A version of this approach, known as the “modified categorical ap-
proach,” applies to “state statutes that contain several different crimes,
each described separately.” Moncrieffe v. Holder, 569 U. S. ___, ___
(2013) (slip op., at 5). In such cases, “a court may determine which
particular offense the noncitizen was convicted of by examining the
charging document and jury instructions, or in the case of a guilty plea,
the plea agreement, plea colloquy, or some comparable judicial record of
the factual basis for the plea.” Ibid. (internal quotation marks omit-
ted). Off limits to the adjudicator, however, is any inquiry into the
particular facts of the case. Because the Government has not argued
that this case falls within the compass of the modified-categorical
approach, we need not reach the issue.
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
statute concluded that Congress, by tying immigration
penalties to convictions, intended to “limi[t] the immigra-
tion adjudicator’s assessment of a past criminal conviction
to a legal analysis of the statutory offense,” and to disallow
“[examination] of the facts underlying the crime.” Das,
supra, at 1688, 1690.
Rooted in Congress’ specification of conviction, not
conduct, as the trigger for immigration consequences, the
categorical approach is suited to the realities of the sys-
tem. Asking immigration judges in each case to determine
the circumstances underlying a state conviction would
burden a system in which “large numbers of cases [are
resolved by] immigration judges and front-line immigra-
tion officers, often years after the convictions.” Koh, The
Whole Better than the Sum: A Case for the Categorical
Approach to Determining the Immigration Consequences
of Crime, 26 Geo. Immigration L. J. 257, 295 (2012). By
focusing on the legal question of what a conviction neces-
sarily established, the categorical approach ordinarily
works to promote efficiency, fairness, and predictability in
the administration of immigration law. See id., at 295–
310; Das, supra, at 1725–1742. In particular, the ap-
proach enables aliens “to anticipate the immigration
consequences of guilty pleas in criminal court,” and to
enter “ ‘safe harbor’ guilty pleas [that] do not expose the
[alien defendant] to the risk of immigration sanctions.”
Koh, supra, at 307. See Das, supra, at 1737–1738.5
The categorical approach has been applied routinely to
assess whether a state drug conviction triggers removal
under the immigration statute. As originally enacted, the
removal statute specifically listed covered offenses and
——————
5 Mellouli’s plea may be an example. In admitting only paraphernalia
possession, Mellouli avoided any identification, in the record of convic-
tion, of the federally controlled substance (Adderall) his sock contained.
See supra, at 3–4.
8 MELLOULI v. LYNCH
Opinion of the Court
covered substances. It made deportable, for example, any
alien convicted of “import[ing],” “buy[ing],” or “sell[ing]”
any “narcotic drug,” defined as “opium, coca leaves, co-
caine, or any salt, derivative, or preparation of opium or
coca leaves, or cocaine.” Ch. 202, 42 Stat. 596–597. Over
time, Congress amended the statute to include additional
offenses and additional narcotic drugs.6 Ultimately, the
Anti-Drug Abuse Act of 1986 replaced the increasingly
long list of controlled substances with the now familiar
reference to “a controlled substance (as defined in [§802]).”
See §1751, 100 Stat. 3207–47. In interpreting successive
versions of the removal statute, the BIA inquired whether
the state statute under which the alien was convicted
covered federally controlled substances and not others.7
Matter of Paulus, 11 I. & N. Dec. 274 (1965), is illustra-
tive. At the time the BIA decided Paulus, the immigration
statute made deportable any alien who had been “convicted
of a violation of . . . any law or regulation relating to the
illicit possession of or traffic in narcotic drugs or mari-
——————
6 The 1956 version of the statute, for example, permitted removal of
any alien “who at any time has been convicted of a violation of, or a
conspiracy to violate, any law or regulation relating to the illicit posses-
sion of or traffic in narcotic drugs, or who has been convicted of a
violation of, or a conspiracy to violate, any law or regulation governing
or controlling the taxing, manufacture, production, compounding,
transportation, sale, exchange, dispensing, giving away, importation,
exportation, or the possession for the purpose of the manufacture,
production, compounding, transportation, sale, exchange, dispensing,
giving away, importation, or exportation of opium, coca leaves, heroin,
marihuana, any salt derivative or preparation of opium or coca leaves
or isonipecaine or any addiction-forming or addiction-sustaining opi-
ate.” Narcotic Control Act of 1956, §301(b), 70 Stat. 575.
7 See, e.g., Matter of Fong, 10 I. & N. Dec. 616, 619 (BIA 1964) (a
Pennsylvania conviction for unlawful use of a drug rendered alien
removable because “every drug enumerated in the Pennsylvania law
[was] found to be a narcotic drug or marijuana within the meaning of
[the federal removal statute]”), overruled in part on other grounds,
Matter of Sum, 13 I. & N. Dec. 569 (1970).
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
huana.” Id., at 275. California controlled certain “narcot-
ics,” such as peyote, not listed as “narcotic drugs” under
federal law. Ibid. The BIA concluded that an alien’s
California conviction for offering to sell an unidentified
“narcotic” was not a deportable offense, for it was possible
that the conviction involved a substance, such as peyote,
controlled only under California law. Id., at 275–276.
Because the alien’s conviction was not necessarily predi-
cated upon a federally controlled “narcotic drug,” the BIA
concluded that the conviction did not establish the alien’s
deportability. Id., at 276.
Under the Paulus analysis, adhered to as recently as
2014 in Matter of Ferreira, 26 I. & N. Dec. 415 (BIA
2014),8 Mellouli would not be deportable. Mellouli pleaded
guilty to concealing unnamed pills in his sock. 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, like the California statute
in Paulus, was not confined to federally controlled sub-
stances; 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 applied in
Paulus, 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 con-
trolled substance,” but was not limited to substances
“defined in [§802].”9
——————
8 The Government acknowledges that Ferreira “assumed the applica-
bility of [the Paulus] framework.” Brief for Respondent 49. Whether
Ferreira applied that framework correctly is not a matter this case calls
upon us to decide.
9 The dissent maintains that it is simply following “the statutory
text.” Post, at 1. It is evident, however, that the dissent shrinks to the
10 MELLOULI v. LYNCH
Opinion of the Court
The BIA, however, announced and applied a different
approach to drug-paraphernalia offenses (as distinguished
from drug possession and distribution offenses) in Matter
of Martinez Espinoza, 25 I. & N. Dec. 118 (2009). There,
the BIA ranked paraphernalia statutes as relating to “the
drug trade in general.” Id., at 121. The BIA rejected the
argument that a paraphernalia conviction should not
count at all because it targeted implements, not controlled
substances. Id., at 120. It then reasoned that a para-
phernalia conviction “relates to” any and all controlled
substances, whether or not federally listed, with which the
paraphernalia can be used. Id., at 121. Under this rea-
soning, there is no need to show that the type of controlled
substance involved in a paraphernalia conviction is one
defined in §802.
The Immigration Judge in this case relied upon Mar-
tinez Espinoza in ordering Mellouli’s removal, quoting that
decision for the proposition that “ ‘the requirement of a
correspondence between the Federal and State controlled
substance schedules, embraced by Matter of Paulus . . .
has never been extended’ ” to paraphernalia offenses. App.
to Pet. for Cert. 32 (quoting Martinez Espinoza, 25 I. & N.
Dec., at 121). The BIA affirmed, reasoning that Mellouli’s
conviction for possession of drug paraphernalia “involves
drug trade in general and, thus, is covered under
[§1227(a)(2)(B)(i)].” App. to Pet. for Cert. 18. Denying
Mellouli’s petition for review, the Eighth Circuit deferred
to the BIA’s decision in Martinez Espinoza, and held that
a Kansas paraphernalia conviction “ ‘relates to’ a federal
——————
vanishing point the words “as defined in [§802].” If §1227(a)(2)(B)(i)
stopped with the words “relating to a controlled substance,” the dissent
would make sense. But Congress did not stop there. It qualified
“relating to a controlled substance” by adding the limitation “as defined
in [§802].” If those words do not confine §1227(a)(2)(B)(i)’s application
to drugs defined in §802, one can only wonder why Congress put them
there.
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
controlled substance because it is a crime . . . ‘associated
with the drug trade in general.’ ” 719 F. 3d, at 1000.
The disparate approach to state drug convictions, de-
vised by the BIA and applied by the Eighth Circuit, finds
no home in the text of §1227(a)(2)(B)(i). The approach,
moreover, “leads to consequences Congress could not have
intended.” Moncrieffe, 569 U. S., at ___ (slip op., at 15).
Statutes should be interpreted “as a symmetrical and
coherent regulatory scheme.” FDA v. Brown & William-
son Tobacco Corp., 529 U. S. 120, 133 (2000) (internal
quotation marks omitted). The BIA, however, has adopted
conflicting positions on the meaning of §1227(a)(2)(B)(i),
distinguishing drug possession and distribution offenses
from offenses involving the drug trade in general, with the
anomalous result that minor paraphernalia possession
offenses are treated more harshly than drug possession
and distribution offenses. Drug possession and distribu-
tion convictions trigger removal only if they necessarily
involve a federally controlled substance, see Paulus, 11
I. & N. Dec. 274, while convictions for paraphernalia
possession, an offense less grave than drug possession and
distribution, trigger removal whether or not they neces-
sarily implicate a federally controlled substance, see Mar-
tinez Espinoza, 25 I. & N. Dec. 118. The incongruous
upshot is that an alien is not removable for possessing a
substance controlled only under Kansas law, but he is
removable for using a sock to contain that substance.
Because it makes scant sense, the BIA’s interpretation, we
hold, is owed no deference under the doctrine described in
Chevron U. S. A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U. S. 837, 843 (1984).
III
Offering an addition to the BIA’s rationale, the Eighth
Circuit reasoned that a state paraphernalia possession
conviction categorically relates to a federally controlled
12 MELLOULI v. LYNCH
Opinion of the Court
substance so long as there is “nearly a complete overlap”
between the drugs controlled under state and federal law.
719 F. 3d, at 1000.10 The Eighth Circuit’s analysis, how-
ever, scarcely explains or ameliorates the BIA’s anomalous
separation of paraphernalia possession offenses from drug
possession and distribution offenses.
Apparently recognizing this problem, the Government
urges, as does the dissent, that the overlap between state
and federal drug schedules supports the removal of aliens
convicted of any drug crime, not just paraphernalia of-
fenses. As noted, §1227(a)(2)(B)(i) authorizes the removal
of any alien “convicted of a violation of . . . any law or reg-
ulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in
[§802]).” According to the Government, the words “relating to”
modify “law or regulation,” rather than “violation.” Brief
for Respondent 25–26 (a limiting phrase ordinarily modi-
fies the last antecedent). Therefore, the Government
argues, aliens who commit “drug crimes” in States whose
drug schedules substantially overlap the federal schedules
are removable, for “state statutes that criminalize hun-
dreds of federally controlled drugs and a handful of similar
substances, are laws ‘relating to’ federally controlled
substances.” Brief for Respondent 17.
We do not gainsay that, as the Government urges, the
last reasonable referent of “relating to,” as those words
appear in §1227(a)(2)(B)(i), is “law or regulation.” The
removal provision is thus satisfied when the elements that
make up the state crime of conviction relate to a federally
controlled substance. As this case illustrates, however,
the Government’s construction of the federal removal
——————
10 The BIA posited, but did not rely on, a similar rationale in Martinez
Espinoza. See 25 I. & N. Dec., 118, 121 (2009) (basing decision on a
“distinction between crimes involving the possession or distribution of a
particular drug and those involving other conduct associated with the
drug trade in general”).
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
statute stretches to the breaking point, reaching state-
court convictions, like Mellouli’s, in which “[no] controlled
substance (as defined in [§802])” figures as an element of
the offense. We recognize, too, that the §1227(a)(2)(B)(i)
words to which the dissent attaches great weight, i.e.,
“relating to,” post, at 2–3, are “broad” and “indeterminate.”
Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at
9) (internal quotation marks and brackets omitted).11 As
we cautioned in New York State Conference of Blue Cross
& Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645,
655 (1995), those words, “extend[ed] to the furthest stretch
of [their] indeterminacy, . . . stop nowhere.” “[C]ontext,”
therefore, may “tu[g] . . . in favor of a narrower reading.”
Yates v. United States, 574 U. S. ___, ___ (2015) (slip op.,
at 10). Context does so here.
The historical background of §1227(a)(2)(B)(i) demon-
strates that Congress and the BIA have long required a
direct link between an alien’s crime of conviction and a
particular federally controlled drug. Supra, at 8–9. The
Government’s position here severs that link by authoriz-
ing deportation any time the state statute of conviction
bears some general relation to federally controlled drugs.
——————
11 The dissent observes that certain provisions of the immigration
statute involving firearms and domestic violence “specif[y] the conduct
that subjects an alien to removal” without “the expansive phrase
‘relating to.’ ” Post, at 3. From this statutory context, the dissent infers
that Congress must have intended the words “relating to” to have
expansive meaning. Post, at 3–4. But the dissent overlooks another
contextual clue—i.e., that other provisions of the immigration statute
tying immigration consequences to controlled-substance offenses
contain no reference to §802. See 8 U. S. C. §1357(d) (allowing detainer
of any alien who has been “arrested by a Federal, State, or local law
enforcement official for a violation of any law relating to controlled sub-
stances”); §1184(d)(3)(B)(iii) (allowing Secretary of Homeland Security
to deny certain visa applications when applicant has at least three
convictions of crimes “relating to a controlled substance or alcohol not
arising from a single act”). These provisions demonstrate that when
Congress seeks to capture conduct involving a “controlled substance,” it
says just that, not “a controlled substance (as defined in [§802]).”
14 MELLOULI v. LYNCH
Opinion of the Court
The Government offers no cogent reason why its position
is limited to state drug schedules that have a “substantial
overlap” with the federal schedules. Brief for Respondent
31. A statute with any overlap would seem to be related to
federally controlled drugs. Indeed, the Government’s
position might well encompass convictions for offenses
related to drug activity more generally, such as gun pos-
session, even if those convictions do not actually involve
drugs (let alone federally controlled drugs). The Solicitor
General, while resisting this particular example, acknowl-
edged that convictions under statutes “that have some
connection to drugs indirectly” might fall within
§1227(a)(2)(B)(i). Tr. of Oral Arg. 36. This sweeping
interpretation departs so sharply from the statute’s text
and history that it cannot be considered a permissible
reading.
In sum, construction of §1227(a)(2)(B)(i) must be faithful
to the text, which limits the meaning of “controlled sub-
stance,” for removal purposes, to the substances controlled
under §802. We therefore reject the argument that any
drug offense renders an alien removable, without regard
to the appearance of the drug on a §802 schedule. Instead,
to trigger removal under §1227(a)(2)(B)(i), the Govern-
ment must connect an element of the alien’s conviction to
a drug “defined in [§802].”
* * *
For the reasons stated, the judgment of the U. S. Court
of Appeals for the Eighth Circuit is reversed.
It is so ordered.
Cite as: 575 U. S. ____ (2015) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1034
_________________
MOONES MELLOULI, PETITIONER v. LORETTA E.
LYNCH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 1, 2015]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
The Court reverses the decision of the United States
Court of Appeals for the Eighth Circuit on the ground that
it misapplied the federal removal statute. It rejects the
Government’s interpretation of that statute, which would
supply an alternative ground for affirmance. Yet it offers
no interpretation of its own. Lower courts are thus left to
guess which convictions qualify an alien for removal under
8 U. S. C. §1227(a)(2)(B)(i), and the majority has deprived
them of their only guide: the statutory text itself. Because
the statute renders an alien removable whenever he is
convicted of violating a law “relating to” a federally con-
trolled substance, I would affirm.
I
With one exception not applicable here, §1227(a)(2)(B)(i)
makes removable “[a]ny alien who at any time after ad-
mission has been convicted of a violation of (or a conspir-
acy or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a con-
trolled substance (as defined in section 802 of title 21).” I
would hold, consistent with the text, that the provision
requires that the conviction arise under a “law or regula-
tion of a State, the United States, or a foreign country
2 MELLOULI v. LYNCH
THOMAS, J., dissenting
relating to a controlled substance (as defined in section
802 of title 21).” Thus, Mellouli was properly subject to
removal if the Kansas statute of conviction “relat[es] to
a controlled substance (as defined in section 802 of title
21),” regardless of whether his particular conduct would
also have subjected him to prosecution under federal
controlled-substances laws. See ante, at 6 (“An alien’s actual
conduct is irrelevant to the inquiry”). The majority’s 12
references to the sock that Mellouli used to conceal the
pills are thus entirely beside the point.1
The critical question, which the majority does not di-
rectly answer, is what it means for a law or regulation to
“relat[e] to a controlled substance (as defined in section
802 of title 21).” At a minimum, we know that this phrase
does not require a complete overlap between the substances
controlled under the state law and those controlled un-
der 21 U. S. C. §802. To “relate to” means “ ‘to stand in
some relation; to have bearing or concern; to pertain; refer;
to bring into association with or connection with.’ ” Mo-
rales v. Trans World Airlines, Inc., 504 U. S. 374, 383
(1992) (quoting Black’s Law Dictionary 1158 (5th ed.
1979)). In ordinary parlance, one thing can “relate to”
another even if it also relates to other things. As ordinar-
ily understood, therefore, a state law regulating various
controlled substances may “relat[e] to a controlled sub-
stance (as defined in section 802 of title 21)” even if the
statute also controls a few substances that do not fall
within the federal definition.
——————
1 It
is likewise beside the point that the pills were, in fact, federally
controlled substances, that Mellouli concealed them in his sock while
being booked into jail, that he was being booked into jail for his second
arrest for driving under the influence in less than one year, that he
pleaded to the paraphernalia offense after initially being charged with
trafficking contraband in jail, or that he has since been charged with
resisting arrest and failure to display a valid driver’s license upon
demand.
Cite as: 575 U. S. ____ (2015) 3
THOMAS, J., dissenting
The structure of the removal statute confirms this in-
terpretation. Phrases like “relating to” and “in connection
with” have broad but indeterminate meanings that must
be understood in the context of “the structure of the stat-
ute and its other provisions.” Maracich v. Spears, 570
U. S. ___, ___ (2013) (slip op., at 9) (“in connection with”);
see also New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655
(1995) (“relate to”); see generally California Div. of Labor
Standards Enforcement v. Dillingham Constr., N. A., Inc.,
519 U. S. 316, 324 (1997) (describing the Court’s efforts to
interpret the “ ‘clearly expansive’ ” “relate to” language in
the pre-emption provision of the Employee Retirement
Income Security Act of 1974). In interpreting such
phrases, we must be careful to honor Congress’ choice to
use expansive language. Maracich, supra, at ___
(GINSBURG, J., dissenting) (slip op., at 7) (noting that a
statute should be interpreted broadly in light of Congress’
decision to use sweeping language like “in connection
with”); see also, e.g., Alaska Dept. of Environmental Con-
servation v. EPA, 540 U. S. 461, 484 (2004) (GINSBURG, J.)
(interpreting Environmental Protection Agency’s authority
in light of the “notably capacious terms” contained in its
authorizing statute).
Here, the “structure of the statute and its other provi-
sions” indicate that Congress understood this phrase to
sweep quite broadly. Several surrounding subsections of
the removal statute reveal that when Congress wanted to
define with greater specificity the conduct that subjects an
alien to removal, it did so by omitting the expansive
phrase “relating to.” For example, a neighboring provision
makes removable “[a]ny alien who . . . is convicted un-
der any law of purchasing, selling, offering for sale, ex-
changing, using, owning, possessing, or carrying . . . any
weapon, part, or accessory which is a firearm or destructive
device (as defined in section 921(a) of title 18).” 8 U. S. C.
4 MELLOULI v. LYNCH
THOMAS, J., dissenting
§1227(a)(2)(C) (emphasis added). This language explicitly
requires that the object of the offense fit within a federal
definition. Other provisions adopt similar requirements.
See, e.g., §1227(a)(2)(E)(i) (making removable “[a]ny alien
who . . . is convicted of a crime of domestic violence,”
where “the term ‘crime of domestic violence’ means any
crime of violence (as defined in section 16 of title 18) . . .
committed by” a person with a specified family relation-
ship with the victim); see generally §1101(a)(43) (defining
certain aggravated felonies using federal definitions as
elements). That Congress, in this provision, required only
that a law relate to a federally controlled substance, as
opposed to involve such a substance, suggests that it
understood “relating to” as having its ordinary and expan-
sive meaning. See, e.g., Russello v. United States, 464
U. S. 16, 23 (1983).
Applying this interpretation of “relating to,” a conviction
under Kansas’ drug paraphernalia statute qualifies as a
predicate offense under §1227(a)(2)(B)(i). That state
statute prohibits the possession or use of drug parapher-
nalia to “store, contain, conceal, inject, ingest, inhale or
otherwise introduce a controlled substance into the human
body.” Kan. Stat. Ann. §21–5709(b)(2) (2013 Cum. Supp.).
And, as used in this statute, a “controlled substance” is a
substance that appears on Kansas’ schedules, §21–
5701(a), which in turn consist principally of federally
controlled substances. Ante, at 3; see also Brief for Peti-
tioner 3 (listing nine substances on Kansas’ schedules that
were not on the federal schedules at the time of Mellouli’s
arrest); Brief for Respondent 8 (noting that, at the time of
Mellouli’s arrest, more than 97 percent of the named
substances on Kansas’ schedules were federally con-
trolled). The law certainly “relat[es] to a controlled sub-
stance (as defined in section 802 of title 21)” because it
prohibits conduct involving controlled substances falling
within the federal definition in §802.
Cite as: 575 U. S. ____ (2015) 5
THOMAS, J., dissenting
True, approximately three percent of the substances
appearing on Kansas’ lists of “controlled substances” at
the time of Mellouli’s conviction did not fall within the
federal definition, ante, at 3, meaning that an individual
convicted of possessing paraphernalia may never have
used his paraphernalia with a federally controlled sub-
stance. But that fact does not destroy the relationship
between the law and federally controlled substances.
Mellouli was convicted for violating a state law “relating to
a controlled substance (as defined in section 802 of title
21),” so he was properly removed under 8 U. S. C.
§1227(a)(2)(B)(i).
II
A
The majority rejects this straightforward interpretation
because it “reach[es] state-court convictions . . . in which
‘[no] controlled substance (as defined in [§802])’ figures as
an element of the offense.” Ante, at 13. This assumes the
answer to the question at the heart of this case: whether
the removal statute does in fact reach such convictions.
To answer that question by assuming the answer is
circular.
The majority hints that some more limited definition of
“relating to” is suggested by context. See ibid. I whole-
heartedly agree that we must look to context to under-
stand indeterminate terms like “relating to,” which is why
I look to surrounding provisions of the removal statute.
These “reveal that when Congress wanted to define with
greater specificity the conduct that subjects an alien to
removal, it did so by omitting the expansive phrase ‘relat-
ing to.’ ” Supra, at 3. For its part, the majority looks to
the context of other provisions referring to “controlled
substances” without a definitional parenthetical, ante, at
13, n. 11, and rejoins that the most natural reading of the
statute “shrinks to the vanishing point the words ‘as
6 MELLOULI v. LYNCH
THOMAS, J., dissenting
defined in [§802],’ ” ante, at 9–10, n. 9. But the definition
of controlled substances does play a role in my interpreta-
tion, by requiring that the law bear some relationship to
federally controlled substances. Although we need not
establish the precise boundaries of that relationship in
this case given that Kansas’ paraphernalia law clearly
qualifies under any reasonable definition of “relating to,”
the definition of controlled substances imposes a meaning-
ful limit on the statutes that qualify.
B
The majority appears to conclude that a statute “relates
to” a federally controlled substance if its “definition of the
offense of conviction” necessarily includes as an element of
that offense a federally controlled substance. Ante, at 6.
The text will not bear this meaning.
The first problem with the majority’s interpretation is
that it converts a removal provision expressly keyed to
features of the statute itself into one keyed to features of
the underlying generic offense. To understand the differ-
ence, one need look no further than this Court’s decision in
Moncrieffe v. Holder, 569 U. S. ___ (2013). In that case,
removal was predicated on the generic offense of “illicit
trafficking in a controlled substance.” Id., at ___ (slip op.,
at 2). Thus, in order to satisfy the federal criteria, it was
necessary for the state offense at issue to have as elements
the same elements that make up that generic offense. Id.,
at ___ (slip op., at 5). By contrast, §1227(a)(2)(B)(i) does
not refer to a generic offense for which we must discern
the relevant criteria from its nature. Instead, it establishes
the relevant criteria explicitly, and does so for the law
of conviction itself rather than for some underlying generic
offense—that is, the law of conviction must “relat[e] to” a
federally controlled substance.
The only plausible way of reading the text here to refer
to a generic offense that has as one element the involve-
Cite as: 575 U. S. ____ (2015) 7
THOMAS, J., dissenting
ment of a federally controlled substance would be to read
“relating to” as modifying “violation” instead of “law.”
Under that reading, the statute would attach immigration
consequences to a “violation . . . relating to a controlled
substance (as defined in section 802 of title 21),” rather
than a violation of a “law . . . relating to a controlled sub-
stance (as defined in section 802 of title 21).” Yet the
majority expressly—and correctly—rejects as grammati-
cally incorrect Mellouli’s argument that the “relating to”
clause modifies “violation.” Ante, at 12.
Having done so, the majority can reconcile its outcome
with the text only by interpreting the words “relating to”
to mean “regulating only.” It should be obvious why the
majority does not make this argument explicit. Even
assuming “regulating only” were a permissible interpreta-
tion of “relating to”—for it certainly is not the most natu-
ral one—that interpretation would be foreclosed by Con-
gress’ pointed word choice in the surrounding provisions.
And given the logical upshot of the majority’s interpreta-
tion, it is it even more understandable that it avoids offer-
ing an explicit exegesis. For unless the Court ultimately
adopts the modified categorical approach for statutes, like
the one at issue here, that define offenses with reference
to “controlled substances” generally, and treats them as
divisible by each separately listed substance, ante, at 6,
n. 4, its interpretation would mean that no conviction
under a controlled-substances regime more expansive than
the Federal Government’s would trigger removal.2 Thus,
——————
2 Ifthe Court ultimately adopts the modified categorical approach, it
runs into new textual problems. Under that approach, an alien would
be subject to removal for violating Kansas’ drug paraphernalia statute
whenever a qualifying judicial record reveals that the conviction
involved a federally controlled substance. If that result is permissible
under the removal statute, however, then Kansas’ paraphernalia law
must qualify as a law “relating to” a federally controlled substance.
Otherwise, the text of the statute would afford no basis for his removal.
8 MELLOULI v. LYNCH
THOMAS, J., dissenting
whenever a State moves first in subjecting some newly
discovered drug to regulation, every alien convicted during
the lag between state and federal regulation would be
immunized from the immigration consequences of his
conduct. Cf. Brief for Respondent 10 (explaining that two
of the nine nonfederally controlled substances on Kansas’
schedules at the time Mellouli was arrested became feder-
ally controlled within a year of his arrest). And the Gov-
ernment could never, under §1227(a)(2)(B)(i), remove an
alien convicted of violating the controlled-substances law
of a State that defines “controlled substances” with refer-
ence to a list containing even one substance that does not
appear on the federal schedules.
Finding no support for its position in the text, the major-
ity relies on the historical background, ante, at 13–14, and
especially the Board of Immigration Appeals’ (BIA) deci-
sion in Matter of Paulus, 11 I. & N. Dec. 274 (1965)—a
surprising choice, given that the majority concludes its
discussion of that history by acknowledging that the BIA’s
atextual approach to the statute makes “scant sense,”
ante, at 11. To the extent that the BIA’s approach to
§1227(a)(2)(B)(i) and its predecessors is consistent with
the majority’s, it suffers from the same flaw: It fails to
account for the text of the removal provision because it
looks at whether the conviction itself necessarily involved
a substance regulated under federal law, not at whether
the statute related to one. See Paulus, 11 I. & N. Dec., at
276 (“[O]nly a conviction for illicit possession of or traffic
in a substance which is defined as a narcotic drug under
federal laws can be the basis for deportation” (emphasis
added)); Matter of Ferreira, 26 I. & N. Dec. 415, 418–419
(BIA 2014) (modeling its categorical approach to
——————
It would then follow that any alien convicted of “a violation of” that law
is removable under §1227(a)(2)(B)(i), regardless of whether a qualifying
judicial record reveals the controlled substance at issue.
Cite as: 575 U. S. ____ (2015) 9
THOMAS, J., dissenting
§1227(a)(2)(B)(i) after the analysis in Moncrieffe, which, as
explained above, keyed removal to the characteristics of
the offense).
Section 1227(a)(2)(B)(i) requires only that the state law
itself, not the “generic” offense defined by the law, “relat[e]
to” a federally controlled substance. The majority has not
offered a textual argument capable of supporting a differ-
ent conclusion.
* * *
The statutory text resolves this case. True, faithfully
applying that text means that an alien may be deported
for committing an offense that does not involve a federally
controlled substance. Nothing about that consequence,
however, is so outlandish as to call this application into
doubt. An alien may be removed only if he is convicted of
violating a law, and I see nothing absurd about removing
individuals who are unwilling to respect the drug laws of
the jurisdiction in which they find themselves.
The majority thinks differently, rejecting the only plau-
sible reading of this provision and adopting an interpreta-
tion that finds no purchase in the text. I fail to under-
stand why it chooses to do so, apart from a gut instinct
that an educated professional engaged to an American
citizen should not be removed for concealing unspecified
orange tablets in his sock. Or perhaps the majority just
disapproves of the fact that Kansas, exercising its police
powers, has decided to criminalize conduct that Congress,
exercising its limited powers, has decided not to criminal-
ize, ante, at 4–5. Either way, that is not how we should go
about interpreting statutes, and I respectfully dissent.