Argument preview: Removal for a misdemeanor “drug paraphernalia” conviction
on Jan 2, 2015 at 3:28 pm
On January 14, the Supreme Court will hear oral argument in Mellouli v. Holder, one of several recent cases in which the Court has scrutinized the federal government’s efforts to remove a lawful permanent resident from the United States based on a minor drug conviction. The frequency with which these kinds of cases recur reflects the focus of the Obama administration’s removal efforts on noncitizens who have had brushes with the criminal justice system.
The case now before the Court specifically involves the government’s efforts to remove a lawful permanent resident based on a state misdemeanor conviction for possession of drug paraphernalia — here, a sock used to hide drugs.
In 2004, Moones Mellouli, a native of Tunisia, entered the United States on a student visa and later became a lawful permanent resident. After pleading guilty to a misdemeanor under Kansas law, he was sentenced to probation for “possess[ing] with intent to use drug paraphernalia, to wit: a sock, to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.” As the court of appeals later observed, “[i]t seems surprising to call a sock ‘drug paraphernalia,’ but using a sock to store and conceal a controlled substance falls within the [Kansas] statute’s literal prohibition.” State laws vary widely on the regulation of drug paraphernalia; some states do not criminalize its possession.
The record of conviction, which is the touchstone in removal proceedings, did not indicate what controlled substance was connected to Mellouli’s “drug paraphernalia.” However, a document not part of the record of conviction alleged that, while in jail on a DUI charge, Mellouli had hidden four tablets of Adderall – a prescription medicine normally used to treat attention deficit hyperactivity disorder (ADHD) – in his sock.
The U.S. government sought to remove Mellouli under Section 1227(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 immigration court ordered his removal. The Board of Immigration Appeals (BIA), which has found drug paraphernalia convictions to justify removal because they relate to “the drug trade in general” — language not found in the statutory provision at issue – dismissed the appeal. The court of appeals agreed with the BIA, noting that deference to the Board’s interpretation was justified under Chevron v. Natural Resources Defense Council, Inc. Mellouli filed a petition for certiorari, which the Court granted last summer.
In his briefs, Mellouli contends that the plain language of the statute requires the state conviction to be directly tied to a controlled substance under federal law; by contrast, the court of appeals effectively held that, contrary to the text of the statute, lawful permanent residents may be removed from the United States based on paraphernalia used in connection with substances that are not regulated by federal law. Mellouli further argues that, because the BIA ruling contradicts the text of the statute as well as the Board’s inconsistency in interpreting the statutory provision in question, Chevron deference does not apply.
The United States counters emphatically that the conviction in fact is under a state law “relating to a controlled substance (as defined in section 802 of title 21),” and thus one that subjects Mellouli to removal. The government points out that Congress employed broad language to ensure that, even when federal- and state-controlled substances schedules are not identical, noncitizens who commit crimes related to drugs are removable. The United States also contends that the BIA interpretation is entitled to Chevron deference.
The significance of the case
The case raises two issues common to the run-of-the-mill contemporary immigration cases on the dockets of the federal courts: (1) interpretation of the complex immigration removal statute; and (2) the deference properly afforded the BIA’s interpretation. Because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument and thus on the Chevron deference point as well (because deference to an interpretation contrary to the text of the statute is unwarranted). If the Court finds ambiguity in the statute, it might well invoke a version of the rule of lenity, as it has occasionally in recent years, to construe the statute against Mellouli’s removal.
In interpreting the criminal removal provisions of the immigration laws, the Roberts Court has opted for bright-line rules (as advocated by Mellouli) as opposed to more flexible standards (as argued for by the U.S. government). In Moncrieffe v. Holder, for example, the Court rejected mandatory removal based on a conviction for possession of a small amount of marijuana and embraced the “categorical approach” requiring all crimes under a state penal law to qualify as an “aggravated felony” for a conviction under that statute to constitute such a felony. Similarly, in Carachuri-Rosendo v. Holder, the Court would not mandate removal based on a misdemeanor conviction for possession of a single tablet of Xanax because the prosecutor had not adhered to the requirements of the statute necessary for the conviction to be treated as a felony. In neither case did the Court defer to the BIA’s interpretation of the statute because the Board’s interpretation conflicted with the statutory text. Indeed, the argument has been made that Chevron deference is not justified in instances like this one given that the BIA’s expertise is in immigration, not criminal, law.
The Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. Despite being engaged to marry a U.S. citizen, Mellouli – who already has been removed – has been exiled from the United States. His misdemeanor drug paraphernalia conviction for concealing contraband in his sock has resulted in the possibility of permanent separation from his fiancé in the United States.