Notice & Comment

The “Scant Sense” Exception to Chevron Deference in Mellouli v. Lynch

Yesterday the Supreme Court issued a 7-2 opinion in Mellouli v. Lynch, an immigration adjudication case dealing with what counts for deportation purposes as a state law “relating to a controlled substance (as defined [by federal law]).” The Court ruled against the Federal Government, refusing to give Chevron deference to the agency’s interpretation of the statute “because it makes scant sense.”

Dean Kevin Johnson has a great summary of the case over at SCOTUSblog, so I won’t wade too far into the details here. In short, Petitioner Mellouli had pleaded guilty to a misdemeanor offense under Kansas law for possession of drug paraphernalia to “store, contain, conceal, inject, ingest otherwise introduce a controlled substance into the human body.” The Board of Immigration Appeals (“BIA”) determined that this Kansas law counted as a law “relating to a controlled substance,” and thus made Mellouli removable from the United States.

The case deals with the categorical approach for determining whether a state conviction counts as a deportable offense under federal immigration law. This categorical approach has long confused courts (and their law clerks) as well as litigants. But the basic idea is that a state conviction only triggers deportation if the least criminalized act in the state statute includes all of the elements of the federal statute—regardless of the actual facts of the particular conviction. 

For drug possession and distribution offenses, the BIA had interpreted “relating to a controlled substance (as defined [by federal law])” to require that the state drug possession or distribution conviction be for a drug listed as a controlled substance in the federal schedules. Because Kansas’s schedules included a number of drugs that were not controlled substances under federal law, under the categorical approach Kansas drug laws arguably should not count as state laws relating to controlled substances for federal immigration law purposes.

The BIA nevertheless found Mellouli removable because he was convicted under a Kansas statute that criminalized drug paraphernalia offenses. In contrast to drug possession or distribution offenses, the BIA had previously ruled in a published opinion that drug paraphernalia statutes relate to the drug trade generally and thus “relate[] to” any and all controlled substances. In the decision under review, the Eighth Circuit had deferred to the BIA’s interpretation of “relating to,” invoking Chevrondeference and finding that the agency had reasonably interpreted this ambiguous term in the statute.

Justice Ginsburg, writing for the Court, rejected the agency’s interpretation. The part I found most interesting is how she got around the fact that “relating to” is a broad and arguably ambiguous term (to which Chevron deference would apply so long as the agency interpretation is reasonable). Here’s the key paragraph from the opinion (slip op. 11; citations and quotations omitted):

The disparate approach to state drug convictions, devised by the BIA and applied by the Eighth Circuit, finds no home in the text of [the federal statute]. The approach, moreover, leads to consequences Congress could not have intended. Statutes should be interpreted as a symmetrical and coherent regulatory scheme. The BIA, however, has adopted conflicting positions on the meaning of [the federal statute], 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 distribution convictions trigger removal only if they necessarily involve a federally controlled substance, while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance. 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….

When does this “scant sense” exception to Chevron deference come into play? At Chevron Step One when determining if the statute is ambiguous? Or at Chevron Step Two when determining whether the agency’s interpretation is a reasonable one? (That would be my vote.) Perhaps this is anotherChevron Step Zero inquiry, akin to the major questions doctrine that presumes that Congress does not hide elephants in mouseholes? Or maybe this is more evidence for Matthew Stephenson and Adrian Vermeule’s claim that Chevron has only one step

Analytically the Court does appear to collapse the two steps into a reasonableness inquiry. But that could be because the Court realizes the statute is ambiguous—usually not a good sign for a court if it wants to strike down an agency interpretation under Chevron—and the Court wants to focus on how the agency’s interpretation is not a reasonable or otherwise permissible one. (It is also interesting that the dissent, authored by Justice Thomas and joined by Justice Alito, does not even invokeChevron deference and instead argues that the federal statute unambiguously encompasses the state conviction at issue here.)

Dean Johnson may be right that this “decision is a typical statutory interpretation and agency deference case, which would not seem to have many far-reaching doctrinal implications.” But maybe, just maybe, this case may also signal a further retreat from the once highly deferential approach under Chevron to judicial review of agency statutory interpretations. Or maybe, as Dean Johnson notes, this is just an immigration-specific feature of the Roberts Court, in that the Court “will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.”


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