Jonalson Dor, a Haitian national and lawful permanent resident, faces removal proceedings based on a state conviction. In August 2018, Dor pleaded guilty in Massachusetts to possession of marijuana with intent to distribute. At that time, both Massachusetts law and the federal Controlled Substances Act (CSA) defined 'marijuana' to include 'hemp.' However, in December 2018, Congress amended the CSA to exclude hemp from the definition of marijuana. In 2023, the Department of Homeland Security amended its charges to rely on Dor's 2018 conviction, arguing he was removable under the Immigration and Nationality Act (INA) for a controlled substance violation. Dor argued that because the federal definition had changed to exclude hemp, his state conviction no longer matched the federal definition, and he should not be deportable. The Immigration Judge and the Board of Immigration Appeals (BIA) rejected this, ruling that the federal definition at the time of his 2018 conviction controls, not the current definition.
The court addressed the core legal question: whether the INA's reference to the CSA requires courts to look at the federal drug schedule as it existed at the time of the noncitizen's conviction or at the time of removal proceedings. The petitioner argued for the 'time of removal' rule, claiming Congress intended to synchronize immigration consequences with the evolving federal drug schedules. The court rejected this, noting that the statutory text does not explicitly resolve the timing issue. Instead, the court turned to the 'categorical approach' established by the Supreme Court in cases like Mellouli v. Lynch. This approach compares the state statute of conviction to the federal definition to determine if there is a 'categorical match.' The court reasoned that the categorical approach is designed to promote efficiency, fairness, and predictability. If the 'time of removal' rule were adopted, noncitizens could not reliably anticipate the immigration consequences of a guilty plea, as the federal definition might change years later to include substances that were previously excluded. This would undermine the Sixth Amendment right to counsel established in Padilla v. Kentucky, which requires defense attorneys to advise clients of deportation risks at the time of the plea. The court found that the 'time of conviction' rule provides the necessary clarity and fairness, ensuring that deportation consequences are fixed at the time of the adjudication of guilt. Consequently, the court joined the Second, Third, Eighth, Ninth, and Eleventh Circuits in adopting the 'time of conviction' rule.
This decision solidifies the 'time of conviction' rule in the First Circuit, meaning noncitizens cannot argue that subsequent federal reclassifications of drugs (such as the removal of hemp from the CSA) render their past state convictions non-deportable. The petition is denied, and the removal order stands. The ruling limits the ability of noncitizens to challenge removability based on changes in federal drug schedules that occur after their conviction, emphasizing that the legal consequences of a crime are determined at the time of the plea or trial.
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