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Supreme Court Finds Possession of a Sock was not a Deportable Offense

Minor criminal convictions have had devastating immigration consequences for many immigrants in recent years. The Obama administration continues to deport hundreds of thousands of people per year, purportedly prioritizing the removal of high-risk criminal offenders. But in a recent case, Mellouli v. Lynch, the defendant had a Master’s degrees in applied mathematics and economics, but was convicted of conduct not criminalized under federal law and then ordered deported under a far-fetched interpretation of our immigration laws.  He has now been separated from his U.S. citizen fiancée for nearly three years.

Mr. Mellouli was a lawful permanent resident when he was stopped for a traffic-related offense in 2010. A subsequent search while he was in a Kansas detention facility led to the discovery of four pills in Mr. Mellouli’s sock, which were unidentified in relevant court documents but allegedly were Adderall (a medication used to treat ADHD). Ultimately, the state prosecutor charged Mr. Mellouli with misdemeanor possession of drug paraphernalia—namely, the sock he used to “store, conceal, [or] contain” the pills. Mr. Mellouli pleaded guilty and served twelve months of probation before the Department of Homeland Security (DHS) initiated proceedings to deport him based upon his conviction.

DHS filed charges against Mr. Mellouli under a law that makes people who have been convicted of violations “relating to” a list of federally controlled substances deportable. However, what a state defines as a controlled substance can vastly differ from the substances the federal government regulates. In this case, Kansas prohibited several substances not found on the federal list of controlled substances, and the prosecutor in Mr. Mellouli’s case never identified in relevant court documents what his sock was used to conceal. Furthermore, the Kansas law under which Mr. Mellouli was convicted criminalized conduct not barred by federal law: Possession, as opposed to sale, of drug paraphernalia is not a federal crime and the federal definition of paraphernalia does not include clothing like Mr. Mellouli’s sock. Nevertheless, an immigration judge ordered Mr. Mellouli removed and the Board of Immigration Appeals (BIA) and the Eighth Circuit Court of Appeals affirmed, on the basis that Mr. Mellouli’s conviction was “associated with the drug trade in general.”

The Supreme Court overturned the Eighth Circuit in a 7-2 decision. The Court held that DHS must prove that a state drug paraphernalia conviction relates to a federally controlled substance in order to prove deportability under the immigration statute at issue in this case and that this requirement exists even where there is substantial overlap between the relevant state and federal lists of controlled substances. Normally, courts defer to the BIA’s reasonable interpretation of an ambiguous statute. But Justice Ginsburg, writing for the Court, saw no need for deference here, because the BIA’s interpretation “ma[de] scant sense.”

The Court followed a long-standing form of analysis known as the categorical approach to determine if Mr. Mellouli’s conviction amounted to a deportable offense. Under the categorical approach, immigration judges must look at statutes of conviction to identify federal immigration consequences, rather than specific conduct at issue in a given case. As Justice Ginsburg noted, this approach provides judicial efficiency and eases the burden on judges to parse criminal records. Focusing on statutes and not conduct also helps defendants better assess the immigration consequences of guilty pleas, which account for the resolution of the majority of criminal cases before trial.

It remains to be seen what impact the Supreme Court’s check on the BIA and Eighth Circuit’s decisions will have in other cases and whether the government will continue to default to deporting immigrants at the expense of proper legal justification.

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