Argument analysis: Mellouli v. Holder and removal for a misdemeanor drug paraphernalia (sock) conviction
on Jan 15, 2015 at 2:59 pm
Yesterday the Supreme Court heard oral argument in Mellouli v. Holder, a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide drugs. The record of his conviction, the touchstone in removal proceedings, did not specify the controlled substance connected to Mellouli’s “drug paraphernalia.”
Section 237(a)(2)(B)(1) of the Immigration and Nationality Act 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, Board of Immigration Appeals, and court of appeals all found Mellouli subject to removal under the statute.
Much of the oral argument focused on the meaning of the statutory language. The Justices probed in detail the meaning of the language and how it applied to the case at hand. In my estimation, a majority of the Court seemed to side with the Mellouli’s interpretation that, in order for removal, a state conviction must relate to a substance controlled under federal law in “section 802 of Title 21.”
Justice Samuel Alito set the tone for the argument by interjecting a question at the tail-end of Jon Laramore’s introduction on behalf of Mellouli: “Can we begin looking at the text of the statute?” Justice Sotomayor, no doubt with deference under Chevron v. Natural Resources Defense Council, Inc. in mind, told Laramore that, if the Court finds the statutory language to be ambiguous, Mellouli had “an uphill battle to fight.” Laramore emphasized that the statute is limited by its terms to federal controlled substances, and that a federal controlled substance was not identified in Mellouli’s record of conviction. He further emphasized that Congress always had controlled the substances that would give rise to removal and that a drug paraphernalia conviction should be no different.
Discussion ensued about the “categorical” and “modified categorical” approaches to state criminal statutes for removal and the idea that a non-citizen would be removable only if the state conviction related to a substance controlled under federal law. Justice Stephen Breyer, with Justices Sonia Sotomayor and Elena Kagan in apparent agreement, seemed to side with Mellouli.
Chief Justice John Roberts and Justice Ruth Bader Ginsburg expressed concern that a federal paraphernalia conviction could not be premised on the use of a sock to conceal a controlled substance. The incongruity between state and federal schemes meant that a drug paraphernalia conviction under state law could subject an immigrant to removal when a federal conviction for possession of the same paraphernalia could not be secured.
Arguing on behalf of the United States, Assistant to the Solicitor General Rachel Kovner seemed to make somewhat inconsistent arguments. Her primary argument was that the “relating to” language in the statute was sufficiently clear to justify removal on a drug paraphernalia conviction: at one point, she stated emphatically that “[w]e don’t think this text is – is ambiguous.” However, she also argued that Chevron deference was justified, thereby suggesting that the statute was ambiguous and that Congress had delegated the agency the authority to reasonably interpret the statute.
Justice Scalia expressed skepticism about the government’s textual argument: “Do you think a sock is more than tenuously related to – to those federal drugs?” Kovner responded in the affirmative. Justice Alito then pressed her on the “practical work [being] done by the phrase ‘as defined in Section 802 of Title 21,’” which lists the substances controlled under federal law. Chief Justice Roberts also seemed unconvinced by the government’s textual argument.
Kovner’s characterization of Mellouli’s argument provoked an emphatic response of “No, no, no, no, no” from Justice Sotomayor. It does not seem a stretch to conclude that her response to the government’s argument was an emphatic “no.”
In four minutes of rebuttal, Laramore was not asked a single question.
As the Affordable Care Act’s oral arguments taught us, it is at best hazardous to speculate from the oral arguments about the outcome of a case. Nonetheless, the Justices’ questioning focused on the meaning and application of the statutory language in question (with little mention of Chevron deference). A majority of the Justices seemed to agree that, because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument.
As discussed in the argument preview, the Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. This case falls into that category. Indeed, Justice Kagan generated laughter from the audience with her quip that, if Mellouli had been convicted of possessing drug paraphernalia for hiding a few tablets of Adderall, students on “half the colleges in America . . . just randomly pick[ed]” could be as well. Several of the Justices seemed troubled about the possibility that Mellouli’s removal – and separation from his fiancé – was based on a misdemeanor conviction for possession of a sock. Consequently, one might predict that a majority of the Court will side with Mellouli. If that is the case, a critical question will be one raised by Justice Sotomayor to Laramore: if he is correct, should the case should be remanded to the BIA? Counsel suggested that the BIA already had its chance, but time ran out before he could offer a fuller response.