Making Drug-related Deportability 1914 Again? How a strict “categorical approach” to the CSA would eliminate unpredictable agency interpretation of the Immigration and Nationality Act

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Ohio State Journal of Criminal Law


The Controlled Substance Act ("CSA ") of 1970 serves as a near midpoint for considering a century of drug regulation, dating to the Harrison Narcotic Tax Act (1914), the now-quaint first federal step in this field, i.e. of taxing the sale of (but not outright criminalizing) cocaine and opium. The early cases construing the Harrison Act are similarly anachronistic. Bundled as "public welfare cases" and including United States v. Balint,' in those early days, the Supreme Court was willing to forego requiring the element of "criminal intent" to be read into general and novel statutes like the Harrison Narcotic Tax Act, and in Balint yielded to apparent congressional wisdom to punish controlled substance violations without an impediment of traditional mens rea. This logic would seem to have been explicitly 'firewalled" to its bygone era by Morissette v. United States (1952), particularly in light of the modern, comprehensive CSA subsequently "clearing the field" in 1970. Convicted immigrants only wish they were so lucky. In a parallel track, use of the "categorical approach" in modern criminal and immigration' law has evolved to require strict comparison of federal and state definitions of criminal offenses in order for those offenses to trigger sentencing or deportation consequences. This implies that both state drug offenses and drug definitions also require a literal federal analogue, under the CSA, to prompt collateral federal treatment. Again, convicted immigrants only wish it were so simple. The Board of Immigration Appeals (BIA), part of the U.S. Department of Justice, has repeatedly invoked the "public welfare cases" to justify removal of immigrants for drug offenses in the absence of proof of their criminal intent. In 2019, the BIA had further telegraphed reluctance to requiring strict uniformity in state drug definitions vis-a-vis the federal enumerated standard substance before permitting an immigration consequence to flow from a related offense. The author has written on, and litigated-both successfully' and unsuccessfully,' and in pending matters9 -these issues as both primary counsel and for amici curiae. This article develops the interconnectedness of the above two topics, in order to comprehensively discuss the immigration consequences of drug convictions, particularly as evolved since 1996 and to attempt to reconcile 1) tracks of Supreme Court civil and criminal jurisprudence regarding mens rea and 2) the collision course of the "categorical approach" with the interpretive principles of Chevron.'0 In doing so, the article makes recommendations for a more consistently principled, predictable, and uniform intersection of the CSA and the Immigration and Nationality Act (INA). While this paper mostly deals with highly technical explanations of legal theories" in the criminal-immigration universe, it should not be lost on the reader just how out of touch the legalese gets from reality. In a way, it is a microcosm of the larger social problem. America's cultural duality is on display-with our aspirational decadence conflicting with our puritanical roots-and we struggle to balance these extreme polarities. If controlled substances were regulated from a holistic public health perspective, if our laws were not so dissonant with our culture's appetites, or even if drugs were taxed (not outright banned) as in 1914, we could avoid much of the technical jousting of the following pages. However, as it is, we have serious legal "apex" scenarios-criminal sentence enhancements and deportation-in which society's wrath bares down on individuals, typically with consequences disproportionate to the "harm" (if any) they inflicted upon society. With the stakes so raised, the esoteric legal analysis is the necessary antidote and justified defensive tool to a ludicrously over-punitive, unrealistic, and hypocritical criminal scheme.

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Fall 2020