Supreme Court Socks it to the Board of Immigration Appeals in Mellouli

Supreme Court Socks it to the Board of Immigration Appeals in Mellouli


Yesterday, in a 7-2 decision, the U.S. Supreme Court ruled that an immigrant who pleaded guilty to a misdemeanor paraphernalia charge for concealing pills in his sock cannot be deported for the offense. Simply stated, Moones Mellouli faced the possibility of deportation for possession of a sock.

Mellouli, who came to the U.S. on a student visa from Tunisia in 2004, graduated with honors from U.S. universities and went on to earn master’s degrees in applied mathematics and economics. He became a lawful permanent resident, worked as an actuary, and taught mathematics at the University of Missouri-Columbia.

FLAG17SB_multicolor_magnum_american_flag_socks_lp1But in 2010, he was arrested in Kansas for driving under the influence and having four pills (later identified as the prescription drug Adderall) in his sock. Mellouli pleaded guilty to the reduced charge of misdemeanor for possession of drug paraphernalia — namely, the sock. He received a sentence of 359 days plus a year’s probation.

Several months after he had successfully completed probation, Mellouli was arrested by agents from U.S. Immigration and Customs Enforcement (ICE) and placed in removal proceedings. Citing the misdemeanor conviction, an Immigration Judge (IJ) ordered his deportation under Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, which provides for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” The Board of Immigration Appeals (BIA) affirmed the IJ’s decision, and the U.S. Court of Appeals for the Eighth Circuit sustained the removal order, finding the BIA’s interpretation of the statute reasonable and thus deserving of Chevron deference.

The case which came before the Supreme Court focused on the intersection between federal and state law as it applies to deportations for drug crimes. Federal law allows the government to deport a noncitizen convicted in state court of any crime “relating to” a controlled substance as defined under the federal Controlled Substances Act. But state laws – such as in Kansas – often make many more drugs illegal than are listed on the federal schedule, and Kansas law treats any container used to store a drug as “drug paraphernalia.”

In Mellouli’s case, the record of conviction did not specify the controlled substance connected to his drug paraphernalia conviction. As the Court noted, it could have been a federally listed controlled substance or it could have been one of the at least nine substances not included under federal law. Under the government’s reading, therefore, although a noncitizen could not be deported for possessing a drug controlled only under Kansas law, he or she could be deported for possessing a sock that holds the drug.

Writing for the majority, Justice Ginsburg explained the Court’s rejection of that approach:notorious_rbg_tank_top

The incongruous upshot is that an alien it not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference under the doctrine described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

The Court likewise rejected the government’s contention that the statutory “relating to” language means both federally listed and non-listed drugs involved in a paraphernalia conviction should result in deportability under INA §237(a)(2)(B)(i). Because “Congress and the BIA have long required a direct link” between a noncitizen’s crime of conviction a particular federally controlled substance, such a “sweeping interpretation departs so sharply from the statute’s text and history that is cannot be considered a permissible reading.” Instead, to trigger removal under the INA, the Court held that a paraphernalia conviction must have an element that connects it to a drug listed in the federal Controlled Substances Act.

Justice Thomas authored a dissent that was joined by Justice Alito in which the justices thought that a person could be deported for possession of a sock.


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