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Drug Offenses


“This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms.”

– Moncrieffe v. Holder, 133 S.Ct. 1678, 1693 (2013) (Sotomayor, J.)


The War on Drugs has long impacted immigrant communities. In 1996, the U.S. Congress enacted legislation hugely expanding the numbers of immigrants subject to mandatory detention, deportation, and denial of lawful status based on often minor state drug offenses.

Moreover, successive administrations have sought to apply the drug provisions of immigration laws extremely aggressively. Drug offenses are now the most common criminal basis for deportation or denial of lawful status.

IDP works with litigants before the U.S. Supreme Court, Courts of Appeals, and the Board of Immigration Appeals (BIA) to narrow the scope of the two primary drug-related provisions used to detain and deport immigrants: the drug trafficking aggravated felony ground; and the controlled substance offense ground.

Our work with Supreme Court litigants has resulted in four seminal cases — Lopez v. Gonzales (2006), Carachuri-Rosendo v. Holder (2010), Moncrieffe v. Holder (2013), and Mellouli v. Lynch (2015) — in which the Court has intervened to prevent the executive branch from continuing with overreaching applications of the drug provisions of our immigration laws that defy the intent of Congress and basic principles of fairness and due process.

Current Practice Advisories on Drug Offenses

(1) Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds (June 8, 2015, by IDP and NIP-NLG)

(a) Appendix A: Examples of State Controlled Substances Not Included in Federal Controlled Substance Schedules

(b) Appendix B: Sample Motion to Reconsider to Terminate Removal Proceedings in Light of Mellouli v. Lynch (for Filing with the BIA)

(2) The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (Nov. 5, 2014, by IDP and NIP-NLG)

(3) Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (May 2, 2013, by IDP, NIP-NLG, and AIC)

Decisions and Briefs from Recent Key Drug Offense Cases Decided by the Supreme Court

Mellouli v. Lynch, 135 S. Ct. 1980 (2015)

In a 7-2 decision written by Justice Ginsburg, the Court examined the controlled substance offense deportability ground, and reaffirmed that the strict, elements-based categorical approach be applied when determining whether a state drug conviction is a controlled substance offense for immigration purposes. The Court also reaffirmed the longstanding requirement that a conviction actually relate to a federally controlled substance to constitute a controlled substance offense for immigration purposes. The Mellouli decision also involves the means/elements distinction for categorical analysis and statutory divisibility, the realistic probability standard, and the noncitizen’s burden of proving relief eligibility. Content in the briefs submitted in Mellouli may useful in ongoing controlled substance litigation before the agencies and federal courts.

Current Litigation Support for Controlled Substance Mismatch Cases

IDP actively supports litigants in ongoing cases before the federal courts and immigration agencies challenging immigration consequences for convictions under state drug laws that are broader than federal drug laws. The federal courts and BIA have long recognized that states often control substances that are not controlled by federal law. In 2015, the Supreme Court reinvigorated this fundamental principle in the Mellouli case, vacating a deportation order based on a Kansas drug conviction because Kansas controls at least nine substances not controlled by federal law.

New York Controlled Substance Offenses

IDP filed an amicus brief before the New York City Immigration Courts in support of noncitizens facing adverse immigration consequences for controlled substance offenses under the New York Penal Law. The amicus brief addresses the over-breadth of New York’s controlled substance schedules and the indivisibility of New York’s controlled substance laws.

Key Drug Trafficking Aggravated Felony Cases and Controlled Substance Offense Cases Decided by the Supreme Court

Simple possession offense: Lopez v. Gonzales, 549 U.S. 47 (2006)

In the first significant Supreme Court case on the drug trafficking aggravated felony ground, the Supreme Court ruled in an 8-1 decision written by Justice Souter that the federal government had been misapplying the “drug trafficking aggravated felony” label to state simple possession offenses that were not aggravated felonies under federal immigration law. The aggravated felony label requires mandatory deportation. IDP (then under NYSDA) and NIP-NLG coordinated amicus briefing and other advocacy.

  • Decision Lopez v. Gonzales
  • Briefs submitted in Lopez v. Gonzales (and companion case, Toledo-Flores v. U.S.)

Second simple possession offense: Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010)

After Lopez, the federal government continued to apply the drug trafficking aggravated felony label to immigrants who had been convicted of simple possession offenses, but only to those immigrants convicted of two or more. The Court rejected the government’s interpretation of the drug trafficking aggravated felony ground, and again required that it only be applied to convictions that involve trafficking and would be punished as felonies under federal law.

Offense covering social sharing of marijuana: Moncrieffe v. Holder, 133 S.Ct. 1678 (2013)

In this sweeping decision on the application of the categorical approach in immigration adjudications, the Supreme Court ruled that the federal government may not treat state convictions that involve the social sharing of marijuana as drug trafficking aggravated felonies. The Court held that such conduct falls outside the definition of a federal “drug trafficking crime.” The Moncrieffe decision also involves the means/elements distinction for categorical analysis and statutory divisibility, the realistic probability standard, and the noncitizen’s burden of proving relief eligibility.

For assistance using the Moncrieffe decision in immigration litigation, consult IDP’s practice advisories on the Supreme Court’s decisions in Mellouli, Descamps, and Moncrieffe, and on the realistic probability standard.

Drug Trafficking Aggravated Felonies in the Courts of Appeals

“Offers to sell”

At least three panels of the Courts of Appeals have held that the federal government may not attach the drug trafficking aggravated felony label to sale offenses that cover mere “offers” that do not involve any substantial step toward actually selling drugs. IDP continues to support litigation challenging the government’s application of the aggravated felony label to overly broad state drug offenses that cover conduct that does not match the federal definition of drug trafficking.

  • Fifth Circuit: Davila v. Holder, 381 Fed.Appx. 413 (5th Cir. 2010) (unpublished)
  • Sixth Circuit: Mendieta-Robles v. Gonzales, 226 Fed. Appx. 564 (6th Cir. 2007) (unpublished)

At least one panel of the Courts of Appeals has upheld government action on this issue, and found offers to sell constitute drug trafficking aggravated felonies for immigration purposes.

Knowledge of the Illicit Nature of a Drug

At least three panels of the Courts of Appeals have found that the government may not attach the drug trafficking aggravated felony label to offenses where state prosecutors do not have to prove the intent or knowledge of the illicit nature of the drug that would be required in a federal prosecution of a drug distribution offenses:

  • Fifth Circuit: Paez-Sarmientos v. Holder, 742 F.3d 624 (5th Cir. 2014)
  • Ninth Circuit: Eudave-Mendez v. Keisler, 249 Fed.Appx. 617 (9th Cir. 2007) (unpublished)
  • Eleventh Circuit: Donawa v. U.S. Atty. Gen., 735 F.3d 1275 (11th Cir. 2013)
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