Moones Mellouli, Petitioner v. Loretta E. Lynch, Attorney General of the United States, Respondent

For Moones Mellouli, Petitioner: Benjamin Richard Casper, UNIVERSITY OF MINNESOTA, Law School, Minneapolis, MN; Katherine L. Evans, UNIVERSITY OF MINNESOTA, Law School - Law Clinic, Minneapolis, MN; William Michael Sharma-Crawford, SHARMA-CRAWFORD ATTORNEYS AT LAW, LLC, Kansas City, MO.

Moones Mellouli, Petitioner, Pro se.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Sara Bayram, Bryan Stuart Beier, Karen Yolanda Drummond, Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC; Anthony Paul Nicastro, U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, DC.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

JUDGMENT

In July 2010, Moones Mellouli, a citizen of Tunisia and lawful permanent resident of the United States, pleaded guilty to misdemeanor possession of drug paraphernalia in violation of Kansas law. The amended state court complaint did not identify the controlled substance that Mellouli had stored in the paraphernalia, his sock. The Department of Homeland Security commenced removal proceedings. After an evidentiary hearing, the Board of Immigration Appeals ("BIA") determined that Mellouli is removable because his conviction for violating the Kansas statute was a conviction "relating to a controlled substance" within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i) .1 We denied Mellouli's petition for review, joining other circuits in upholding the BIA's application of the "relates to" provision in § 1227(a)(2)(B)(i) . Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013). The Supreme Court granted Mellouli's petition for a writ of certiorari and reversed, concluding "that Mellouli's Kansas conviction for concealing unnamed pills in his sock did not trigger removal under § 1227(a)(2)(B)(i) " because the conviction did not establish that he possessed or concealed a controlled substance listed in the 21 U.S.C. § 802 schedules. Mellouli v. Lynch, 135 S. Ct. 1980 , 192 L. Ed. 2d 60 (2015). The Court did not explicitly remand for further proceedings to this court or to the BIA.

The Supreme Court's opinion explained at length why it was "incongruous" for the BIA to interpret § 1227(a)(2)(B)(i) as meaning "that an alien is not removable for possessing a substance controlled only under Kansas law," as the BIA held in Matter of Paulus, 11 I. & N. Dec. 274, 276 (BIA 1965), "but he is removable for using a sock to contain that substance," as the BIA held in this case. 135 S. Ct. at 1989 . But the Court did more than simply declare that the BIA's incongruous interpretation of the statute was owed no deference. It rejected the contention that Matter of Paulus was not controlling authority on whether a state law "relates to" controlled substances defined in 21 U.S.C. § 802 . See 135 S. Ct. at 1995 (Thomas, J., dissenting); Mellouli, 719 F.3d at 1000-1001 . Instead, the Court 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 ].'" 135 S. Ct. at 1991 . That [*2] holding is conclusive. But it does not resolve this case because the BIA also found that Mellouli was convicted for using his sock to conceal Adderall, a controlled substance that is defined in 21 U.S.C. § 802 . Though Mellouli appealed the BIA's alternative ruling to this court, it was not included in the question presented to the Supreme Court.2 Nor was this evidentiary issue addressed by the parties or considered by the Supreme Court.

In Mellouli, the Court reaffirmed "the categorical approach historically taken in determining whether a state conviction renders an alien removable under the immigration statute." Id. at 1986 . However, in Nijhawan v. Holder, 557 U.S. 29 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (2009), the Court recognized an exception to the categorical approach. Nijhawan involved 8 U.S.C. § 1227(a)(2)(A)(iii) , which provides that "[a]ny alien who is convicted of an aggravated felony" is removable. The Immigration and Nationality Act defines "aggravated felony" to include "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i) . The Court concluded that this monetary threshold was a specific circumstance underlying the conviction, not an element of the crime, and therefore immigration judges may consider evidence outside the record of conviction to determine whether the threshold was satisfied. 557 U.S. at 38-42 .

In this case, the government's burden included proof by clear and convincing evidence that Mellouli's drug paraphernalia conviction did not fall within the exception in § 1227(a)(2)(B)(i) for "a single offense involving possession for one's own use of 30 grams or less of marijuana." To meet this burden, the government submitted a probable cause affidavit reciting that, after Mellouli's arrest for driving under the influence of alcohol, he admitted to detention center deputies that four orange tablets found in his sock bearing the inscription, "M Aphet Salts 30 mg," were Adderall, a drug listed on both the Kansas and federal controlled substance schedules. Also submitted was the initial Kansas criminal complaint charging him with the level 6 felony of "trafficking in contraband in a jail." The Immigration Judge ruled this circumstance-specific evidence admissible and found that Mellouli's offense "did not involve the possession of thirty grams or less of marijuana," the statutory exception to the controlled substance offenses defined in § 1227(a)(2)(B)(i).

In denying Mellouli's administrative appeal, the BIA applied the "circumstance specific" approach in upholding the Immigration Judge's finding that Mellouli is removable. The personal use exception in § 1227(a)(2)(B)(i) "invites an inquiry into the underlying facts of the case," the BIA explained. "A 'circumstance specific' rather than a modified categorical approach is the appropriate means for determining the nature of the crime. See Nijhawan v. Holder, 557 U.S. 29 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (2009); Martinez Espinoza, [25 I. & N. Dec. 118 (BIA 2009)]." The original complaint and probable cause affidavit were properly admitted, the BIA ruled, because "under the circumstance-specific inquiry, an Immigration Judge may look to documents outside the record of conviction. [*3] See Nijhawan v. Holder, supra ."

In his petition for review to this court, Mellouli argued that whether his Kansas drug paraphernalia conviction involved use in connection with a federal controlled substance must be determined by the "categorical" and "modified categorical" analysis applied by the Supreme Court in Taylor v. United States, 495 U.S. 575 , 599-602 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990), and Shepard v. United States, 544 U.S. 13 , 26 , 125 S. Ct. 1254 , 161 L. Ed. 2d 205 (2005). Here, the Kansas statutes and the only documents reflecting his Kansas conviction that may be considered in applying the modified categorical approach did not identify a particular controlled substance; therefore, the government failed to prove he is removable under § 1227(a)(2)(B)(i) . We rejected this broad contention, concluding that the BIA properly applied the "circumstance specific" approach in determining that Mellouli's conviction fell outside the personal use exception. "Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings." Moncrieffe v. Holder, 133 S. Ct. 1678 , 1691 , 185 L. Ed. 2d 727 (2013).

Mellouli further argued that the circumstance-specific evidence establishing that his paraphernalia conviction in fact involved Adderall, a federal controlled substance, was inadmissible until the government first proved that his conviction related to a federal controlled substance with statutory and record-of-conviction evidence admissible under the categorical and modified categorical approaches. We noted that the need for efficient immigration proceedings requires that the government prove its entire case in one submission, not in a bifurcated removal hearing. But on the other hand, we noted that the contention "raises an interesting and potentially difficult evidentiary issue," and we did not know how the BIA would resolve the issue in a case where the answer mattered to the ultimate issue of removability. Therefore, we left the issue for another day. 719 F.3d at 1001-02 .

We now conclude that day has come. In reaffirming the categorical approach as the norm in removal proceedings, the Supreme Court acknowledged that it "departed from the categorical approach in Nijhawan . . . based on the atypical cast of the prescription at issue [in] 8 U.S.C. § 1101(a)(43) (M)(i) . . . . In the main, § 1227(a)(2)(B)(i) has no such circumstance-specific thrust; its language refers to crimes generically defined." Mellouli, 135 S. Ct. at 1986 n.3 (emphasis added). The Court's cryptic phrase, "in the main," was surely a reference to the personal use exception in § 1227(a)(2)(B)(i) , which bears a striking resemblance to the "atypical cast of the prescription at issue" in Nijhawan. That brings the evidentiary issue we left for another day squarely into play. As that issue raises considerations that should be addressed by the BIA in the first instance, we vacate our prior decision and remand to the BIA for further proceedings in light of the Supreme Court's decision.

MANDATE

In accordance with the judgment of 07/06/2015, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a) , the formal mandate is hereby issued in the above-styled matter.

July 06, 2015