Hassan Bah v. William Barr
950 F.3d 203
| 4th Cir. | 2020Background
- Petitioner Hassan Bah, a Sierra Leone national who overstayed a U.S. visa, was charged in Virginia with possession of MDMA and marijuana; forensic testing later showed the sample was ethylone (a Schedule I analog).
- The indictment was amended to identify ethylone (handwriting ambiguous in part); Bah was convicted at a bench trial under Va. Code § 18.2-250(A)(a) (Schedule I/II possession).
- DHS initiated removal proceedings asserting Bah’s conviction was a controlled-substance offense under 8 U.S.C. § 1227(a)(2)(B)(i); Immigration Judge and BIA found him removable.
- Central legal question: whether Virginia’s possession statute is divisible by the identity of the controlled substance (so the modified categorical approach may be used) or indivisible (so Bah’s conviction might not categorically match the federal schedules).
- Majority (Fourth Circuit) held Virginia law treats the specific drug identity as an element, applied the modified categorical approach, concluded the record shows ethylone (a federally scheduled drug), and denied Bah’s petition for review.
- Dissent argued Virginia precedent and Bah’s record are ambiguous, that the statute is indivisible as to specific substance identity, and that ambiguity forecloses a categorical match and removal.
Issues
| Issue | Plaintiff's Argument (Bah) | Defendant's Argument (Gov't/DHS) | Held |
|---|---|---|---|
| Whether Va. Code § 18.2-250(A)(a) is divisible by specific controlled-substance identity | Identity of the drug is not an element; statute criminalizes possession of a Schedule (means), so indivisible by substance | Identity is an actus reus element; statute is divisible by particular substance | Court: Divisible by specific substance (state authority, jury instructions, and practice show identity is an element) |
| Whether Bah’s record of conviction supports removability under 8 U.S.C. § 1227(a)(2)(B)(i) by matching a federal schedule | Even if divisible, Bah’s record is ambiguous (indictment/conviction contain inconsistent drug names), so modified categorical approach cannot establish a federal match | Modified categorical approach may consult the indictment and conviction; amended indictment and judgment identify ethylone, which is federally controlled | Court: Applying modified categorical approach, record shows conviction for ethylone (a federally scheduled substance); conviction matches § 1227(a)(2)(B)(i); petition denied |
Key Cases Cited
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (immigration consequences attach only if the state conviction involves a substance listed in the federal schedules)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (use categorical approach comparing state statute elements to federal offense)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements vs. means; governs when the modified categorical approach applies)
- Descamps v. United States, 570 U.S. 254 (2013) (explains and limits use of the modified categorical approach to statutory alternatives/elements)
- Shepard v. United States, 544 U.S. 13 (2005) (limits record materials courts may consult when applying the modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational articulation of the categorical approach)
- Jaquez v. Sessions, 859 F.3d 258 (4th Cir. 2017) (jurisdictional limits on review of removal orders for controlled-substance convictions)