If you are not a United States citizen and were convicted under Minn. Stat. § 152.025.2(1), the Department of Homeland Security (“DHS”) can remove you from the United States. The Minnesota statute punishes someone who “unlawfully possesses one or more mixtures containing a controlled substance classified in Schedule I, II, III or IV, except a small amount of marijuana.” The two federal statutes that could subject you to removal from the United States after being convicted under Minn. Stat. § 152.025.2(1) are § 212(a)(2)(A)(i)(II) and § 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”). Generally, DHS will charge you under INA § 212 if you are undocumented / entered the United States unlawfully or under INA § 237 if you entered with a nonimmigrant visa or were lawfully admitted, or are a lawful permanent resident. Although there are differences between the text of these two federal statutes, they are quite similar. In short, they provide that if you were convicted of a violation of any law or regulation relating to a controlled substance, you are removable from the United States.
Our office, Contreras & Metelska, has been challenging DHS’ ability to remove someone based on a conviction under Minn. Stat. § 152.025.2(1) for few years now and we have recently asked the Supreme Court of the United States to review one of our client’s cases which turns on this issue. Our client was convicted of violating the Fifth Degree Possession of a Controlled Substance statute because she was in possession of two different type of drugs. She was placed in removal proceedings and charged with being removable under INA § 212(a)(2)(A)(i)(II). In order to determine whether or not someone is removable under the INA based on a state conviction, courts use a very elaborate and rather complex system of analysis called the categorical approach and, if necessary, the modified categorical approach.
In the case now on review, the main legal question was whether the Minnesota statute requires proof of the identity of the particular controlled substance in question beyond a reasonable doubt in order to convict someone. Our argument was that the statute only requires proving that an individual be found to have possessed a controlled substance beyond a reasonable doubt, regardless of the identity of the substance possessed. This distinction is important because persons convicted of violating Minn. Stat. § 152.025.2(1) cannot be found to have committed a “controlled substance offense” within the meaning of the INA unless the specific identity of the controlled substance is an element; if this is not true, as we’ve argued, the specific identity of the substance constitutes a mere means of commission and its identity becomes unimportant for inadmissibility purposes (at least as far as controlled substance offenses go).
Our office argued that our client is not removable under a categorical analysis of INA § 212(a)(2)(A)(i)(II) because the statute is overbroad and indivisible (an overbroad statute is indivisible if it provides alternative and interchangeable “means” of committing a crime rather than alternative elements which must be proven beyond a reasonable doubt) meaning that a conviction under Minn. Stat. § 152.025.2(1) is not a violation of a law or regulation relating to a controlled substance under the federal law.
At first, the Immigration Judge agreed with us and did not sustain the controlled substance charge; this allowed our client to apply for cancellation of removal for certain non-permanent residents or in the alternative, to apply for a green card through consular processing based on her qualifying relationship with a U.S. citizen relative. However, a few months later, the Immigration Judge bafflingly reversed her own decision. The Immigration Judge applied the modified categorical approach and found that Minn. Stat. § 152.025.2(1) was overbroad but divisible, despite previously finding the statute was overbroad and indivisible. The Immigration Judge held that the statute required the identity of the specific controlled substance to be proved beyond reasonable double which allowed her to conclude that our client was convicted of a violation of law or regulation relating to a controlled substance. As such, the Immigration Judge denied all relief and ordered our client removed from the United States.
We appealed the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”). We argued that the Immigration Judge was wrong in applying the categorical modified approach and finding that the Fifth Degree Controlled Substance statute required a proof of the particular controlled substance in question in order to sustain a conviction. However, the BIA affirmed the Immigration Judge’s decision after agreeing with the Immigration Judge’s holding that Minnesota law required a proof of the particular controlled substance in question in order to sustain a conviction.
We argued that neither the statute in question, Minnesota case law, nor Minnesota’s pattern jury instructions require the state to establish beyond a reasonable doubt the identity of the specific drug in question. We insisted in arguing that the state need only prove beyond a reasonable doubt that “a” controlled substance was possessed without regard to the specific substance possessed. Therefore, we argued, the specific identity of the drug is not an element of the offense and our client is not removable for a conviction of a violation of law related to a controlled substance. The Eighth Circuit unfortunately, and we believe incorrectly, ruled in favor of the DHS finding that the identity of the specific drug possessed is an element of the offense. See Rendon v. Barr, 952 F.3d 963 (8th Cir. 2020). The Eighth Circuit distorted and misread or misunderstood Minnesota judicial decisions to reach this conclusion.
Earlier this month, we appealed the Eighth Circuit Court’s decision to the Supreme Court of the United States (“SCOTUS”) by filing a Writ of Certiorari. See Villegas Rendon v. Barr, No. 20-186 (filed Aug. 19, 2020), on petition for writ of certiorari from Rendon v. Barr, 952 F.3d 963 (8th Cir. 2020). We argued that the Eighth Circuit’s decision is not only wrong, but that it conflicts with many of its sister circuits courts, incorrectly analyzes our client’s case under the categorical approach, and even ignores the documents in the record of conviction which clearly show that Minnesota can and will convict a person under Minn. Stat. § 152.025.2(1) without specifying which specific substance possessed formed the basis for the guilty plea and conviction.
Our office urged SCOTUS to consider the fact that our client was convicted under Minn. Stat § 152.025.2(1) for a single count of drug possession stemming from simultaneous possession of two different drugs. We argued that this fact alone proves that Minnesota law never requires the specific identity of the drug to be proven in a conviction for possession of controlled substances. We also urged SCOTUS to consider that Minnesota law does not clearly answer the question of whether the specific identity of the particular drug must be proven to obtain a conviction for Minnesota’s lowest level drug possession offense. We noted that even the Immigration Judge did not know what Minnesota law said on this issue since first she found that Minnesota law does not require the specific controlled substance to be identified to obtain a conviction but later that Minnesota law did require it (this is important because state law must be “clear” on whether the specific identity is an element or means). Since Minnesota law does not “clearly” and conclusively answer the question at hand, we argued, our client is not removable from the United States.
The main crux of our question is whether the identity of a specific controlled substance is required to be proven beyond a reasonable doubt in state criminal prosecutions when the state statutes in question disallow possession of controlled substances by reference to specific drug schedules rather than by reference to specific drugs. For example, if a statute criminalizes possession of controlled substances listed in Schedules I, II, or III, does such a statute necessarily require proving the specific identity of a controlled substance within one of those schedules, or does the statute merely require showing that a Schedule I, II, or III controlled substance was in-fact possessed? This is an important question because all 50 states have at least one controlled substance law which criminalizes actions relating to controlled substances by referencing schedules rather than substances. If our interpretation of these statutes is correct, convictions for violations of these state laws will usually be insufficient to trigger immigration inadmissibility or deportability.
Currently, the First, Third, Fourth, Sixth, and Eighth Circuits all provide that state-controlled substance laws which identify proscribed controlled substances by reference to drug schedules are equivalent to laws which identify proscribed controlled substances specifically by name or chemical structure. These decisions rest on the shaky premise that in order to prove a substance fits within a schedule, the substance itself must be proven. This premise is shaky because it fails to account for drug mixtures, in which multiple drugs are contained within a single mixture, some of which are controlled federally, and some of which are controlled only by the state.
Conversely, the Second, Seventh, and Tenth Circuits have all found that the state laws which identify proscribed controlled substances by reference to drug schedules are not equivalent to laws which identify and proscribe the substances specifically by name or chemical structure. In these circuits, a state statute which criminalizes possession of methamphetamine specifically will constitute a deportable offense, whereas a statute which criminalizes possession of Schedule I or II drugs will not constitute a deportable offense even if the person possessed methamphetamine and if methamphetamine is listed in either Schedule I or II. This is the approach we advocate for and believe is correct.
As an aside, the Fifth Circuit recently considered the same issue but avoided reaching the question by inventing a new overbreadth mechanism that allowed it to avoid reaching the divisibility question.
If you would like to obtain more information about this important case, please contact Contreras & Metelska, P.A. at 612-771-0019. Ask to speak to one of the three attorneys working on this case: Gloria Edin Contreras, Magdalena B. Metelska, or Nico Ratkowski.
Please note that this information is not and should not be considered to be legal advice. If you or someone you know was convicted of a crime related to a violation of a controlled substance, contact a knowledgeable immigration attorney with experience in the area of controlled substance laws.
1 You could also be subject to removal under 212 if you admit the elements of the controlled substance statute. The immigration consequences of “admission” to a controlled substance crime is beyond the subject of this blog.