Safe Havens

 

(D)  Retroactivity of the Federal Drug Schedule for Aggravated Felons.  In Gousse v. Ashcroft,[21] the court applied the Paulus rule (though not citing the case itself), and actually compared the federal drug schedules and the state schedules to determine that the noncitizen in that case must have been convicted of an offense related to a federal controlled substance. 

Mr. Gousse was convicted in Connecticut of “sale of hallucinogen/narcotic.”[22]  Applying the categorical approach, the court first narrowed the list of possible drugs for sale of which defendant was convicted from all controlled substances proscribed by Connecticut law to only hallucinogenic or narcotic drugs.[23]  By state law, the list of hallucinogenic drugs was expressly co-extensive with the federal list, so the court turned its focus to determining whether all “narcotic” drugs listed in the Connecticut drug schedules were in fact included within the broader category of all listed federal controlled substances.[24]

Counsel argued that two particular substances fell within the Connecticut definition of “narcotic,” but were not included within the federal definition.  The court found that one of those two substances was not actually on either list, and therefore Mr. Gousse could not have been convicted of selling that particular substance.[25]

 

The other substance, the court noted, was added onto the federal schedules one week before Mr. Gousse entered his plea of guilty.  The court rejected counsel’s argument that the substance had to be proscribed under federal law at the time the offense was committed.  The court went beyond merely holding that the substance had to be proscribed under federal law by the time the plea was entered, and held that because the aggravated felony definition is retroactive, “[a]ll that is required for removal is that an earlier conviction be encompassed by the definition of ‘aggravated felony’ at the time removal proceedings are initiated.”[26]  Therefore, as long as the substance was included on the federal schedule by the time immigration proceedings were initiated, it did not matter that the substance was not proscribed by federal law at the time of the offense or the conviction. 

 

Although Gousse reads like an unfortunate decision, especially for clients convicted in Connecticut, the case did correctly apply the Paulus rule (unlike Luu-Le), and the categorical analysis based upon a comparison of federal and state drug schedules.  Mr. Gousse had a more difficult task than others might, since his record of conviction limited the applicable state controlled substances to hallucinogens and narcotics.  There may still be other controlled substances proscribed by Connecticut law that are not on the federal schedules.  It is important to remember who has the burden of proof in these cases.  Additionally, although the federal drug schedules were retroactively applied to Mr. Gousse, charged as an aggravated felon, such retroactive application would arguably not apply where a noncitizen is charged under one of the other drug-related grounds of removal, since the other deportation grounds are not expressly made retroactive to convictions occurring before the deportation ground came into existence or was expanded to cover the present case.

Surprisingly, both Luu-Le and Gousse fail to cite or mention Matter of Paulus, even though the circuit courts are normally required to give Paulus  deference under Chevron[27] to BIA decisions.

 

            Both decisions were also unclear regarding the burden of proof.  Luu-Le and Gousse were both cases in which “the jurisdictional question and the merits collapse[d] into one.”[28]  Although the Government bears the burden of proving that a noncitizen is deportable by clear and convincing evidence,[29] neither court made mention of this burden.  Given the jurisdictional nature of these cases, the courts may have instead placed the burden on the noncitizen appellants to show that the court had petition for review jurisdiction under the jurisdiction limitations of the 1996 legislation.[30]

 

[21] Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003).

[22] Id. at 93, citing Connecticut Gen. Stat. § 21a-277(a).

[23] Id. at 95-97. 

[24] Id. at 97.

[25] Id. at 99-100. 

[26] Id. at 99. 

[27] Chevron USA v. Natural Resources Defense Counsel, 467 U.S. 837 (1984).  But see Michel v. INS, 206 F.3d 253, 262-266 (2d Cir. 2000) (Chevron deference not accorded to construction of state penal code).

[28] Luu-Le v. INS, 224 F.3d at 914 (quoting Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000)).

[29] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[30] INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (no jurisdiction to review orders of removal on criminal grounds).