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.