Wednesday, September 27, 2023

Israel to Join US Visa Waiver Program Nov. 30

I don't know about you, but I don't have the list of Visa Waiver Program countries memorized. On my morning commute today, I learned that the VWP program does not currently include Israel. But, as of November 30, it will. Apparently, Israel has wanted to be a part of the VWP program "for decades."

Here's the 4-minute NPR story that caught my attention:

Key sticking points apparently included:

  • US concerns about Israel giving passports to "new immigrants" including Russians. Israel will now have "stricter rules" for issuing passports.
  • US concerns that Israel treat all US passport holders the same, even if they are dual citizens of Iran, Iraq, Syria, or Lebanon... or even Palestinian-American. They now do.


September 27, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Monday, September 18, 2023

Your Playlist: Informer by Snow

Have I got the jam for you. Informer by Snow is the best-selling reggae single in US history. Don't remember the 1992 mega hit? Give it a listen:

Yeah, you know it.

Ok. So you've got a Canadian singing reggae, which he got into after Jamaican immigrants moved to his childhood neighborhood. Is that the immigration angle? Nah.

This is an INA § 212 song.


The singer, Darrin Kenneth O'Brien -aka- Snow has a Canadian criminal record. He has a late-80s conviction related to beating a person with a crowbar during a bar brawl. He served 8 months of the 1 year sentence for that offense. He spent another 8 months in jail awaiting trial for attempted murder before being acquitted. He actually wrote Informer during that second stint behind bars.

As this TikTok-er, known for his musical deep-dives, explains, O'Brien was unable to get a visa to come to the U.S. to promote Informer or later musical endeavors.

@patrickhicks82 You better listen for me now #music #musicstory #musichistory #90smusic #hiphop #reggae #dancehall ♬ original sound - Patrick Hicks Music Stories

Have your students play around with 212 and figure out his inadmissibility. 


September 18, 2023 in Music, Teaching Resources | Permalink | Comments (0)

Friday, September 15, 2023

Emigration tale of a car turns to immigration story of a mechanic

This 2022 episode from Planet Money will 100% keep you entertained on your commute.

It's an emigration story about a car. Seriously. Podcaster Scott Gurian approached Planet Money with a story about a new-looking white Lexus SUV from New Jersey that he happened to stumble across in a mechanic's parking lot in Turkmenistan. When Gurian talked to the English-speaking (! yes ! in Turkmenistan!) mechanic, Oraz, he learned that a lot of damaged U.S. cars end up in overseas.

The podcast largely focuses on the Lexus itself: How did it end up in Turkmenistan? Who'd it belong to? And why did they get rid of this almost new car?

Those questions are answered. And they are interesting.

But the show also has an immigration twist. The mechanic, Oraz, applied for an won a diversity visa. Gurian, the podcaster, became his immigration sponsor. And Oraz, his wife, and three kids now live in NJ themselves. Oraz has a job in an auto body shop but dreams of getting into the damaged car market, selling and shipping cars to Turkmenistan.

A great diversity visa example for class, should you need one. A great way to go through the elements of INA § 203(c)(2) requirements of education/work experience.


September 15, 2023 in Teaching Resources | Permalink | Comments (0)

Wednesday, September 13, 2023

Teaching Client Responses to Trauma & Persuasive Storytelling

As I've blogged about before, I've been using this John Oliver clip to teach students about SIVs for wartime translators.

One of the key takeaways for me is how one translator appears on the program and talks with a very flat affect about the murder of his father and the kidnapping of his young brother. I've found this to be a good introduction to discussion of how client trauma presents in wildly different ways and in ways that students may not be expecting.

This year I offered an unexpected pairing to the above video:

Yes, that's acclaimed actress Bryce Dallas Howard crying on command while Conan O'Brien talks about shopping at Home Depot.

I asked my students to think about how they would expect someone to present when talking about their trauma. Why people might present differently -- everything from cultural norms to survival tactics.

I'll be re-raising the Howard video when we watch clips from Well Founded Fear and hear the one asylum officer complain about how: "People are actually coached... They tell them, well, you really should cry in the interview. Not that that's really gonna help them. But they think if they cry that that's gonna get them a grant."

That comment, of course, begs this question: Will a failure to show any emotion when recounting a horrific story show lack of truthfulness? Should a lawyer anticipate that problem? How can they proactively address it?


September 13, 2023 in Film & Television, Teaching Resources | Permalink | Comments (0)

Wednesday, September 6, 2023

U.S. v. Minter: 2d Cir. follows 8th in finding no categorical match b/c of state definition of cocaine

Today, the U.S. Court of Appeals for the Second Circuit issued a decision in US v. Minter. It's a significant decision (with crimmigration implications) that follows the reasoning of the 8th Circuit's 2022 decision in Owen.

The issue presented in Minter was this: Was Minter’s 2014 conviction under New York Penal Law § 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 6 U.S.C. § 924(e)(1)?

How did the court approach this question? With everyone's favorite tool: The Categorical Approach.

The approach required the court to analyze the state law definition of cocaine. It's at that point that things get, well, science-y:

Unlike New York’s undefined use of the term “isomer,” the federal regulation further defines “isomer” to mean only “any optical or geometric isomer” of cocaine. Id. §1300.01(b). Isomers are “[c]hemical compounds that have the same composition but differ in the chemical arrangement of their constituents.” Merck Eprova AG v. Gnosis S.p.A, 760 F.3d 247, 252 (2d Cir. 2014). There are two broad types of isomers: stereoisomers—isomers in which the atoms are joined in the same order, but in a different spatial arrangement—and constitutional isomers, which are all other isomers, including what are termed “positional isomers.” See United States v. Phifer, 909 F.3d 372, 377-78 (11th Cir. 2018) (“Unlike in stereoisomers, the atoms in constitutional isomers 2 differ in how they are connected.”). The CSA includes only stereoisomers—optical and geometric—in its definition of cocaine, but includes certain constitutional isomers in its definitions of other drugs. See, e.g., 21 C.F.R. § 1308.11(d) (defining hallucinogens to include its “optical, positional, or geometric” isomers (emphasis added)).


In comparison, the New York definition of cocaine does not limit itself to optical or geometric isomers. That is so even though the New York schedules supply specific definitions of criminalized isomers of other types of drugs. See, e.g., N.Y. Public Health Law § 3306, Schedule I(d) (defining isomers of hallucinogenic substances “only” to “include[] the optical, position and geometric isomers”); see also id. § 3306, Schedule I(g) (same, for synthetic cannabinoids). Without such an express limitation, New York law criminalizes conduct—specifically conduct involving cocaine isomers other than optical or geometric isomers—that the CSA does not. The plain text of the two statutes thus compels the conclusion that New York's definition of cocaine is categorically broader than the federal definition.

In sum, New York’s definition of cocaine was found to be categorically broader than the relevant federal definition.


September 6, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Tuesday, September 5, 2023

NPR: At The Mercy Of The Courts

A few days ago, I heard this compelling story on NPR called At The Mercy Of The Courts. It's an episode of Latino USA that (I just learned) first aired in 2020. It follows the asylum claim of a small family from Guatemala--Wendy, Elvis, and their daughter.

There's a lot of good material in here for class, but I thought I'd point out something perhaps less obvious than the substance (which includes, among other gems, agreeing to not appeal so as to bring an end to immigration detention). Check out the small segment from 43:21-43:37. These few seconds really capture the chaos of testifying and interpretation in immigration court.


September 5, 2023 in Teaching Resources | Permalink | Comments (0)

Wednesday, August 16, 2023

The UK's Migrant Detention Barge

The United Kingdom has attempted a unique solution to housing asylum seekers: an off-shore barge called the Bibby Stockholm. The first 15 migrants came aboard just last week.

The barge has the capacity to hold 500 migrants. This short video from Sky News offers a look inside the facility. It would make an amazing comparative contribution to discussions of immigrant detention in the U.S.

Only a few days after opening, the Bibby Stockholm was forced to release its detainees to other facilities when legionella bacteria was discovered in the water system. There's no word yet on when they'll return, but the UK Health Minister has suggested it may be back in business in just a few days.


August 16, 2023 in Current Affairs, Film & Television, Teaching Resources | Permalink | Comments (0)

Thursday, August 3, 2023

Deadly Migration: Comparative Tales

It is safe to say that most of our students are aware that migration is dangerous. American news outlets routinely cover the dangers facing migrants in Mexican border cities. Some are even aware that migrants who travel via "la bestia" face unique threats--if you need a movie on this point, Which Way Home is particularly haunting. Others know about the dangers of falling from the U.S.-Mexico border wall, crossing the desert, and/or drowning in the Rio Grande. Fewer know about the crossing Darién Gap--this video news coverage from 2019 is still really good on that point.

I didn't set out to list all the ways in which migrants can die on their journey to the United States. This Reuters article from 2022 tries to do that, if you're interested.

Rather, a pair of news articles from BBC this week had me thinking about bringing to the classroom the idea of deadly migration as a comparative issue. Having students see that desperate people world over are willing to face shockingly high risks in a gamble to obtain a demonstrably better future. To that end, check out these articles from just this week:


August 3, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Monday, July 31, 2023

UK Asylum Simulation


Refugee Action has created an online test to give folks a sense of what it is like to be interviewed for asylum by the UK's Home Office. They write: "Some of the questions might surprise you, but don’t worry - unlike people in the asylum system, your life won't depend on getting them right."

Y'all... I took the test. And I am shook. You've got to do this.

(For those teaching Comparative Immigration Law or Comparative Human Rights... this would make an excellent in-class exercise!)


July 31, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Wednesday, July 26, 2023

East Bay Sanctuary Covenant v. Biden

On Monday, I talked about 2023 developments in asylum border processing, including the new rebuttable presumption of ineligibility for asylum that applies to noncitizens who enter the United States from Mexico at the southwest land border per this final rule

Yesterday, Judge Jon S. Tiger of the N.D. Cal. issued an order striking down that rule. (Btw, that link goes to the actual decision, not reporter coverage.) Procedurally, Judge Tiger granted plaintiffs' motion for summary judgment.

Some highlights:

  • Conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress[.] (p.16)
  • [INA § 208] permits noncitizens to apply for asylum regardless of whether or not they arrive at a designated port of entry; a rule that conditions eligibility for asylum on presentment at a port of entry conflicts with [that statutory provision]. (p.17)
  • As written, the Rule imposes a presumption of ineligibility on asylum seekers who did not apply for or were granted asylum in a transit country regardless of whether that country is a safe option. (p.18)
  • Regulations imposing additional conditions on asylum must be consistent with the core principle of the safe-third-country and firm-resettlement bars. This Rule is not. (p.19)
  • The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option. (p.19)
  • The Rule is arbitrary and capricious for at least two reasons. First, it relies on the availability of other pathways for migration to the United States, which Congress did not intend the agencies to consider in promulgating additional conditions for asylum eligibility. Second, it explains the scope of each exception by reference to the availability of the other exceptions, although the record shows that each exception will be unavailable to many noncitizens subject to the Rule. (p. 20)

The order, it should be noted, is stayed for 14 days. No doubt the government will appeal.


July 26, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (2)

Monday, July 24, 2023

Teaching Asylum Process at the Border (July 2023 edition)

Sometimes, not gonna lie, I wish I taught Torts. The elements of negligence have stayed the same for hundreds of years: duty, breach, causation, damage. Imagine the ease of class prep!

Alas, you and I teach Immigration Law. And with the law changing so frequently, we need to start almost from scratch with each semester. That's never been more true than today when I taught asylum process at the border. Let my stress be your advance prep with these helpful resources!

A lot has changed in 2023 in terms of how noncitizens can seek asylum at the border. Here is what I chose to cover:

  • Venezuelans, Nicaraguans, Haitians, and Cubans who irregularly cross the Panama, Mexico, or U.S. border are subject to expulsion to Mexico per this January 2023 White House statement. Instead, the US will grant parole to up to 30,000 individuals per month from these four countries, who have an eligible sponsor and pass vetting and background checks, allowing them to come to the United States for a period of two years and receive work authorization. (You can tie the new approach to this 2022 post by Kevin).
  • As of 2023, use of the CBP One app is now mandatory for noncitizens seeking asylum at the border. Co-editor Austin Kocher's article on CBP One is where you want to start. It's got the development history of the app (originally intended to digitize I-94 forms and schedule cargo deliveries), its transformation into a border enforcement tool, the app's glitches, and how it is "the result of a political decision to force already vulnerable migrants to rely upon experimental technologies that hinder rather than facilitate their asylum-seeking process." (Here's a Feb 2023 post on CBP One if you'd like another resource.)
  • For noncitizens entering the U.S. border between May 11, 2023, and May 11, 2025, there is now a rebuttable presumption of ineligibility for asylum applies to an alien who enters the United States from Mexico at the southwest land border per this final rule. (Here's a post from Kevin about an earlier iteration of the proposed rule. See also Karen Mussalo's take on Just Security.)

Hopefully these resources will get your prep jump-started!


July 24, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Thursday, July 13, 2023

Immigrant of the Day: Arnel Pineda (Philippines)

Does the name Arnel Pineda ring a bell to you? He's the current lead singer of the band Journey. You know: Don't Stop Believin'. Pineda took on the role of lead singer in 2007, taking over for Steve Perry.

Somewhere along the line I came across this article--The True Story of Arnel Pineda's Visa Journey--describing Pineda's experience in getting the visa he needed to audition with the band. Short story: it sounded like a fake narrative to get into the US. Except that the consular officer recognized Pineda from seeing him perform and had already been blown away by his ability to sing like Steve Perry!

I just used that tale in class today in our discussion of the admission process.

There are actually a few interesting videos online with Pineda, including this one where he talks a little more about his visa journey:


July 13, 2023 in Music, Teaching Resources | Permalink | Comments (0)

Tuesday, July 4, 2023

Chae Chan Ping v. United States, The Chinese Exclusion Case

I'm currently in the United Kingdom, teaching Immigration Law as part of the University of Oklahoma College of Law's Oxford Summer Program. (FWIW, this program is open to students at other universities, if you've got law students looking to pick up U.S. credits while studying abroad! The courses offered vary each year with regular appearances from Professional Responsibility and International Trade. It just so happens that I'm on the roster and teaching immigration this year.)

Anyhoo... since July 4 isn't a UK holiday, and given that we're on a compressed 5-week teaching schedule, I taught class today. And the subject of class was Chae Chan Ping v. United States, The Chinese Exclusion Case.

First off, this year I happened to spend time reading the wikipedia article about the case's author, Justice Field, before class. Have you read it before? Wowzahs. Now, I always tell my 1Ls that it's important for every lawyer to have their least favorite SCOTUS justice. Mine is Justice Field. (Thomas, Scalia, and RGB are low-hanging fruit in my opinion. Go deep or go home.) The Wikipedia page skips all the fun stuff about Field that you can find in the Legomsky casebook--about how he was the mastermind behind anti-Chinese political platforms before becoming a SCOTUS justice. But it has new and interesting crazy bits. Some quotes (apparently written by someone who dislikes the justice as much as I do!):

  • [Field moved to California in 1848 following the Gold Rush. He was quickly elected] alcalde, a form of mayor and justice of the peace under the old Mexican rule of law, of Marysville (curiously, he was elected Alcalde just three days after his arrival in Marysville). Because the Gold Rush city could not afford a jail, and it cost too much to transport prisoners to San Francisco, Field implemented the whipping post, believing that without such a brutal implement many in the rough and tumble city would be hanged for minor crimes.


  • Field was determined and vengeful when others disagreed with him, and he easily made enemies. An opponent of his wrote that Field's life would be "found to be one series of little-mindedness, meanlinesses, of braggadocio, pusillanimity, and contemptible vanity."


  • While serving on the California Supreme Court, Field had a special coat made with pockets large enough to hold two pistols so that he could fire the weapons inside the pockets.


  • Field insisted on breaking John Marshall's record of 34 years on the court, even when he was no longer able to handle the workload. His colleagues asked him to resign due to his being intermittently senile, but he refused.

So. That was interesting.

I also re-read the case today. I typeically re-read all materials before teaching. I find this refreshes my familiarity with the cases and concepts, but also I sometimes walk away with new insight.

Today, I was particularly struck by a passage in the case that I hadn't really focused much on before:

This court is not a censor of the morals of other departments of the government; it is not invested with any authority to pass judgment upon the motives of their conduct. When once it is established that congress possesses the power to pass an act, our province ends with its construction and its application to cases as they are presented for determination.

I love how the first sentence back-handedly suggests that the Court might have come out a different way were it free to consider the "morals" and "motives" of Congress in passing the Scott Act. And yet, Justice Field's own history indicates that he wholeheartedly approved of anti-Chinese legislation. It's also an interesting sentence given that it feels like modern SCOTUS jurisprudence seems to be doing just this--judging the morals and motives of Congress and state legislatures and changing the law when those morals and motives don't align with their own.

Well, those are the thoughts of an ex-pat celebrating the 4th in the country we celebrate our independence from. Wishing you all a wonderful holiday.


July 4, 2023 in Teaching Resources | Permalink | Comments (0)

Wednesday, June 14, 2023

Immigration Law: An Open Casebook -- Version 2.0


I am pleased to announce that the new edition of Immigration Law: An Open Casebook is now available. It can be downloaded for free in .docx or .pdf form at this site. Paperback versions are available at cost on Amazon, currently selling for $18.38.

The new version fixes typos/errors and clarifies certain explanations. You'll also find an edited copy of the May 2023 9th Circuit opinion of United States v. Carillo-Lopez at section 13.6.

The book is the first open-source/open-access casebook on U.S. immigration law. It is designed to serve as the principal text for a broad-based immigration law course as well as a specialty course on crimmigration. The book provides explanations and primary source readings regarding immigration law in the United States. Topics include the constitutional bases for regulating immigration, the contours of the immigration bureaucracy, the admission of immigrants and nonimmigrants into the United States, undocumented migration, the deportation and exclusion of noncitizens, refugee and asylum law, immigration detention, federal and state immigration crimes, border and interior immigration enforcement, and the law concerning citizenship and naturalization.

The book has a Creative Commons license that allows adopters to add to, delete from, abridge, rearrange, and alter the work as best fits their courses. (See "Notices" inside the book.) This means that the book can be a jumping-off point for your own bespoke course materials. You can take this book in its .docx format and pull it apart, re-arrange it into the order you prefer, and add/delete materials. In the end, you’ll have a book tailored to your specific class, that you’re happy with, at a fraction of the effort because you’re not starting from scratch!

Questions? Adopting the book? Email kit.johnson at


June 14, 2023 in Books, Teaching Resources | Permalink | Comments (0)

Thursday, May 25, 2023

For Your Citizenship Class

ICYMI--Hertz, the rental car agency, refused to rent a car to a Puerto Rican man who presented a driver's license but not a passport for identification. Why? Because he was an "out-of-country" renter and so needed to present his passport. The police were ultimately called and sided with the car agency. There's a lot of short clips that you can use in class, many embedded in this WaPo article. And here's some short-ish NBC commentary:


May 25, 2023 in Current Affairs, Film & Television, Teaching Resources | Permalink | Comments (0)

Wednesday, May 24, 2023

Symposium on Teaching Immigration Law

Tuesday, May 23, 2023

ABA Commission on Immigration online school

The ABA Commission on Immigration has a new hub for our trainings and materials.  This is a great resource for pro bono attorneys and legal service providers.  


The ABA Commission on Immigration has launched an online school that offers a FREE, on-demand course titled REPRESENTING NON-DETAINED IMMIGRANT CLIENTS through Teachable, an online courses platform.





Click Sign Up Now


Sign up with your e-mail or Google account


Activate your account by clicking the link in your confirmation e-mail


Enroll in the Representing Non-Detained Immigrant Clients course





Who is this course for?

What topics are covered?

What is the format?

It is free so anyone can enroll, however, it is tailored to:

ü Entry-level immigration attorneys and DOJ-accredited representatives

ü Pro bono volunteers new to immigration law

This course introduces how to represent non-detained clients in removal proceedings with a focus on humanitarian relief.

It consists of 10 units, including asylum, survivor-based relief (SIJS, U Visa, T Visa, VAWA), nationality-based relief (TPS, CAA), family-based petitions, effective representation (trauma-informed lawyering, declarations, etc.), Immigration Court, USCIS, and more.

Each unit contains relevant resources created by the ABA COI and Children Immigration Law Academy’s (CILA), including manuals, webinar recordings, practice advisories, quick guides, and more.

Those enrolled can access the resources all at once, watch the webinars at their own pace, and download the PDFs.

How can my organization or firm use this course?

Will this course be updated over time?

Will there be more ABA COI School courses?

ü Onboarding new staff, interns, and volunteers

ü Training course for pro bono volunteer attorneys

ü Circulate with your colleagues to bookmark as a resource bank

Yes! As ABA COI continues to host more webinars and create more resources, those will be added to the applicable units in this course.

Enroll to receive updates when other resources are added.

Yes! We hope to add a course focused on representing detained immigrant clients and more depending on the needs of practitioners like you.

SIGN UP for our Monthly Pro Bono Newsletter

EXPRESS INTEREST in volunteering with us



May 23, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Friday, May 5, 2023

Friday Funny

It's Friday. The semester is winding down but this just means exam writing or exam grading or cramming in every single service obligation into the two weeks before people head off for the summer. Hm. Maybe that's just me. Anyway, I think we could all use a Friday Funny. This one is courtesy of actor/comic Billy Eichner.

IMMIGRANT OR REAL AMERICAN? #billyeichner #billyonthestreet #newyork

♬ original sound - Billy On The Street Fan

It reminds me of the two end-of-semester games that I play with immigration law students: (1) Born in the U.S.A. or not? and (2) Naturalized American or Foreigner?

Now here's a bit of a downer to report after your humor break... the HOOPS I had to jump through to post this living in a red state. I watched it on my personal cell phone (not connected to university wifi), sent the link to my personal email, then had to charge my frequently neglected personal computer so that I could post from there. Because TikTok is banned from all university equipment! I could rant for a good long while about Oklahoma politics but that's more of a Saturday Shout than a Friday Funny.

Have a great weekend everyone!


May 5, 2023 in Conferences and Call for Papers, Film & Television, Teaching Resources | Permalink | Comments (0)

Thursday, April 6, 2023

A Royal Real-o-thetical

Defensie, CC0, via Wikimedia Commons

I'll admit it to you: I've got no plans to read Prince Harry's autobiography Spare. Is it, loosely speaking, an immigration story? Sure. Even the publisher's blurb touts the prince's journey to the U.S.: "Watching his wife suffer, their safety and mental health at risk, Harry saw no other way to prevent the tragedy of history repeating itself but to flee his mother country."

I'm just, well, not interested. Or at least, not interested beyond skimming the summary in People magazine.

That said, I'm not above using a royal real-o-thetical to spark student interest in the classroom.

And the bastion of pedigreed and hard-hitting journalism that is the Daily Beast has all that you need in this sweet article: Team Harry Says He Was ‘Truthful’ About Drug Use With U.S. Immigration.

Apparently, Harry's book details his use of cocaine, marijuana, ayahuasca, and magic mushrooms. So ask your students to find the INA provision(s) relevant to drug use. Ask them to see what, if anything, would apply if Harry was an applicant for an immigrant visa. A nonimmigrant visa? Would he be eligible for any waivers?

I've no doubt this line of questioning will engender more enthusiasm than a "Hypo 1" featuring "Applicant A."


April 6, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Wednesday, February 22, 2023

Crimmigration: When A "Controlled Substance" Isn't A "Controlled Substance", Part 2

Yesterday, I introduced you to an 11th Circuit case (Said) that confronted the issue of whether a state-defined "controlled substance" met the federal definition of a "controlled substance" such that a noncitizen with a drug-related conviction would be removable. Today I bring you an 8th Circuit variation on the same topic: US v. Owen 51 F.4th 292 (8th Cir. 2022).

I learned about this case via a wonderful CLE put together by James H. Binger Center for New Americans at the University of Minnesota Law School. The program, Challenging "Controlled Substance" Offenses Under the INA in the 8th Circuit, should be available online soon.

In the meantime, let's talk Owen. Owen isn't an immigration case; it's an Armed Career Criminal Act (ACCA) case. Nonetheless, the key issue in Owen was whether the defendant's state drug convictions met the federal ACCA standard. Employing a categorical analysis, the Eighth Circuit concluded that the state statute "sweeps more broadly" than the federal due to the state definition of cocaine. Thus, the underlying convictions did not count as "serious drug offenses" under the ACCA.

To understand the mismatch between state and federal law, we head into the realm of organic chemistry. Haha. I'm not going to be doing that. Instead, I'm going to quote from the Owen decision directly:

Minnesota's all-inclusive definition covers “coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, the salts and isomers of cocaine and ecgonine, and the salts of their isomers and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of those substances.” Minn. Stat. § 152.01, subd. 3a (emphasis added). By specifically mentioning “the ... isomers of cocaine,” the definition sweeps in any substance with “the same chemical composition” as cocaine, even if it has a different “structural form.” Dictionary of Science and Technology 1151 (1992) (explaining chemical isomerism); see also United States v. Phifer, 909 F.3d 372, 376 (11th Cir. 2018) (defining isomers as “molecules that share the same chemical formula but have their atoms connected differently, or arranged differently in space” (brackets omitted)).

Cocaine has multiple isomers. See 1 Gerald F. Uelmen & Alex Kreit, Drug Abuse and the Law Sourcebook § 5:23 (2022). The problem for the government is that federal law criminalizes just two: optical and geometric isomers. 21 U.S.C. §§ 802(14), 812, sched. II(a)(4); 21 C.F.R. § 1308.02. Minnesota's *296 statute, by contrast, bans them all.

Interesting, both Said and Owen spend time discussing the "realistic probability" argument. As in, does the defendant have to prove a "realistic probability" that possession of these other isomers is needed in order to find a categorical mismatch. The Eighth and Eleventh Circuits both said no, saying that the realistic probability test is only for resolving ambiguities. When the statute itself is unambiguous: "The 'realistic probability,' ... is 'evident from the language of the statute itself.'

I'm going to be real with you. I attended this CLE. I listened to John Bruning (Supervising Litigation Attorney, The Advocates for Human Rights) explain isomers. Pictures were involved. I still felt like a kid in a Charlie Brown comic where John (the adult) was just a muted trombone playing. But, I did get this, which I will absolutely be incorporating into my teaching: Not every state drug conviction will trigger immigration consequences. Look to see if the definitions of the applicable controlled substance match. And get scientific help to make that determination as needed.


February 22, 2023 in Current Affairs, Teaching Resources | Permalink | Comments (0)