Mimesis Law
28 February 2021

SCOTUS’ Message in Mellouli: No One Should be Deported Because They Wear Socks

June 9, 2015 (Mimesis Law) — While the world was busy digesting Elonis v. United States, the “Facebook threats” case decided by the Supreme Court, immigration scholars and lawyers were celebrating a win in Mellouli v. Lynch, a little-noticed case that will have big implications for non-citizens facing deportation premised on state-level convictions for drug-related offenses.

The case revolved around Moones Mellouli, a Tunisian immigrant who in 2010 was charged with possession of drug paraphernalia — after a search following an arrest for driving under the influence revealed he was hiding four Adderall pills in his sock. Possession of the drug itself is illegal under federal and Kansas law, but Mellouli’s paraphernalia charge, a misdemeanor, made no mention of the drug. The charging document only noted that the sock amounted to paraphernalia used “to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.”

Why the Kansas prosecutor concluded a sock was similar to bongs or scales or other implements of drug use and possession is a mystery. But Mellouli pled guilty to the paraphernalia charge anyway, and he received a suspended sentence and 12 months on probation. Several months after successful completion of the sentence, immigration authorities arrested Mellouli — a permanent resident at the time — and an immigration judge found him deportable based on his misdemeanor conviction. He lost his appeal before the Board of Immigration Appeals and was effectively deported in 2012.

In a 7-to-2 decision authored by Justice Ruth Bader Ginsburg, the Supreme Court reversed the board’s determination and ruled “that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal” under federal immigration law, which authorizes deportation only if the would-be deportee is “convicted of a violation of . . . any law . . . relating to a controlled substance” listed as a federally scheduled drug.

To get there, Ginsburg analyzed the “categorical approach” for determining whether state-level convictions amount to deportable offenses. This method focuses “on convictions, not conduct,” and thus looks to the totality of the statutory scheme under which the immigrant was convicted — not the particulars of the immigrant’s criminal case itself.

This presumably gives immigration courts a rubric to decide cases more uniformly and expeditiously — the already-burdened system would probably collapse if it engaged on a case-by-case determination. Never mind that state courts aren’t that great at record-keeping, or that these cases are often the result of quickie plea deals memorialized on forms with nary a detail about the particulars of an immigrant’s conviction. But the approach is also pragmatic: Ginsburg noted that it allows immigrants “to anticipate the immigration consequences of guilty pleas in criminal court, and to enter safe harbor guilty pleas” that keep the defendants away from “the risk of immigration sanctions.” Like deportation.

But Mellouli only pleaded guilty to hiding some unnamed pills in his sock, not possessing Adderall in the first place. And at the time of his conviction, Kansas listed at least nine drugs that the federal government didn’t define in its own schedules. “The state law involved in Mellouli’s conviction, therefore,” Ginsburg wrote, “was not confined to federally controlled substances; it required no proof by the prosecutor that Mellouli used his sock to conceal a substance” penalized under either federal law or Kansas law.

This approach, Ginsburg noted, has led the Board of Immigration Appeals to “the anomalous result that minor paraphernalia possession offenses are treated more harshly than drug possession and distribution offenses,” an outcome that makes no workable sense: “The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance.”

Recognizing that “Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug,” Ginsburg blasted the federal government’s attempts to stretch immigration law to trigger deportation “any time the state statute of conviction bears some general relation to federally controlled drugs.” Any drug offense won’t do. More is required: Federal authorities “must connect an element of the alien’s conviction to a drug” that is federally scheduled. And because that didn’t happen in the case of Mellouli’s socks, he should never have been deported.

New York immigration lawyer Michael Goldman suggests the real-world implications of Mellouli are that criminal defense lawyers representing non-citizens in drug-related offenses may try to negotiate a unidentified drug as part of a plea deal. And in the immigration context, lawyers now have an extra incentive to assess whether the state definition of “controlled substance” is broader than the federal definition, in which case the person wouldn’t be deportable.

Working in tandem, both of these solutions can help people like Mellouli not get socked with ridiculous consequences stemming from overzealous, and often just careless, drug prosecutions.

Main image via Flickr/J Dimas

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