Hussein v. Attorney General of the United States
413 F. App'x 431
| 3rd Cir. | 2010Background
- Hussein, a Kuwaiti-born Jordanian, entered the U.S. on a student visa and remained after completing schooling in 1989.
- In 1996, Hussein pleaded guilty in New Jersey to possession of drug paraphernalia, a disorderly persons offense; he received 42 days in jail and a six-month license suspension.
- The INS served a Notice to Appear in 2003 charging Hussein with failure to comply with admission conditions, two crimes involving moral turpitude, and a drug-related offense; he admitted the first two but denied a drug-related conviction.
- The IJ held the paraphernalia offense qualified as a conviction under the INA and deemed Hussein ineligible for adjustment of status or a waiver, affirming BIA’s ruling.
- In 2008, the AG remanded to the BIA to reconsider whether a disorderly persons offense can be a conviction under the INA; the BIA again concluded it can be a conviction.
- Hussein timely petitioned for review, challenging the BIA’s construction of “conviction” and its interpretation of “relating to” a controlled substance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a disorderly persons offense can be a conviction under the INA | Hussein argues it cannot, distinguishing disorderly offenses from crimes. | The BIA treats a conviction as a federal question and may include disorderly offenses where elements were proven beyond a reasonable doubt. | Yes; conviction exists when elements are proven beyond a reasonable doubt. |
| Whether drug paraphernalia offense 'relates to' a controlled substance | Paraphernalia offense does not relate to controlled substances under state law. | BIA’s broad reading extends to offenses closely linked to drug use, including paraphernalia possession. | Relates to a controlled substance; BIA’s broad construction reasonable. |
| Whether the paraphernalia offense relates to cocaine and affects waiver/adjustment eligibility | Waiver/adjustment should be available if the offense does not involve a prohibited marijuana quantity. | Record shows relation to cocaine; waiver not available, adjustment denied. | Record supports relation to controlled substances; ineligible for adjustment; waiver not available. |
Key Cases Cited
- Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (convictions are a federal question and not dependent on state procedures)
- Morales v. TWA, 504 U.S. 374 (U.S. 1992) (ordinary meaning of 'relating to' is broad)
- Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) (paraphernalia offense relates to drug possession)
- Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (drug paraphernalia linked to drug possession)
- Alvarez Acosta v. Att’y Gen., 524 F.3d 1191 (11th Cir. 2008) (paraphernalia offense closely linked to drug offenses)
- Chang, 16 I. & N. Dec. 90 (BIA 1977) (interpretive context for relating to controlled substances)
- Eslamizar, 23 I. & N. Dec. 684 (BIA 2004) (preponderance standard cannot create a conviction under INA)
- Hurtado v. California, 110 U.S. 516 (1872) (historical basis for jury trial rights not required for certain offenses)
- Blanton v. North Las Vegas, 489 U.S. 538 (1989) (some offenses carry no right to jury trial)
- Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (BIA entitled to Chevron deference on ambiguous statutes)