A categorical approach is taken in determining whether a state conviction renders an alien removable under the immigration statute. The approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior. A state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. 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.
Lawful permanent resident Moones Mellouli pleaded guilty to a misdemeanor offense under Kansas law and the possession of drug paraphernalia in 2010. The sole “paraphernalia” 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 acknowledged, 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 successfully completed probation, Immigration and Customs Enforcement officers arrested him as deportable based on his Kansas misdemeanor conviction.
Should Mellouli’s misdemeanor conviction trigger deportation?
The Court held that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal and deportation. The drug-paraphernalia possession law under which he was convicted, by definition, relates a conviction relating to a controlled substance listed on the federal schedules, since the state list of controlled substances contained substances not listed in the federal schedules and thus the substance concealed in the alien's sock was not necessarily a controlled substance under federal law. The court noted that in evaluating removal based on the conviction rather than the alien's conduct, there was no basis for distinguishing drug possession and distribution offenses from drug paraphernalia offenses to eliminate the need for a direct link between the alien’s crime of conviction and a particular federally controlled drug.