Opinion analysis: Court rejects removal based on misdemeanor drug paraphernalia conviction
on Jun 1, 2015 at 1:42 pm
Today, the Supreme Court decided Mellouli v. Lynch, a case involving the removal from the United States 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 four tablets of the prescription drug Adderall.
Removal based on a sock conviction may sound like a story line from a television sitcom. However, the U.S. government instituted removal proceedings based on the conviction and dramatically changed Mellouli’s life. Forced to leave the country where he had resided since 2004 after an immigration court ruled against him, Mellouli now lives apart from his U.S. citizen fiancé.
For purposes of removal, the immigration statute requires that a drug conviction under state law must “relat[e] to a controlled substance (as defined) by” federal law. This requirement is important because some states ban substances in addition to those regulated by federal law. (Kansas, for example, regulates at least nine substances not regulated by federal law.) The charging document and plea agreement in Mellouli’s criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by federal law. Nonetheless, the immigration court and Board of Immigration Appeals (BIA), with the approval of the court of appeals, ordered Mellouli deported from the United States.
The arguments in the case, as often is true in modern cases in which the courts review the actions of administrative agencies, revolved around the application of the Court’s 1984 decision in Chevron v. Natural Resources Defense Council, Inc., holding that the courts must defer to an agency’s reasonable interpretation of an ambiguous statute. Cases involving Chevron deference necessarily require careful analysis of the statute in question to determine whether the text is ambiguous, which triggers deference to reasonable agency interpretations of the statute.
Justice Ruth Bader Ginsburg wrote for a majority of the Court, which included all but Justices Clarence Thomas and Samuel Alito. The opinion carefully marches through the statutory language and agency interpretations and concludes “that Mellouli’s Kansas conviction did not trigger removal under” the immigration statute. The Court, as it had in Moncrieffe v. Holder, reiterated its adherence to the “categorical approach” to removal under criminal statutes, which requires that all of the convictions under a statute must trigger removal without a need for inquiry into the facts of the individual case. The Court further observed that “Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug.” Recognizing that Kansas law regulated nine substances not included in the federal controlled substances lists, the Court found that the government’s emphasis on the “relating to” language in the immigration statute to justify removal for a conviction in connection with a substance that was not clearly regulated by federal law was a “sweeping interpretation [that] departs so sharply from the statute’s text and history that it cannot be considered a permissible reading” In rejecting the government’s position, the majority stated that “[t]he incongruous upshot [of the government’s argument] 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. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference under the doctrine described in Chevron.”
Justice Thomas, in a dissent joined by Justice Alito, would have accepted the U.S. government’s argument. The broad “relating to” language in the removal statute resolved the case for him, as he would have accepted that “faithfully applying [the] text means that an alien may be deported for committing an offense that does not involve a federally controlled substance.”
Today’s decision is a typical statutory interpretation and agency deference case, which would not seem to have many far-reaching doctrinal implications. It is consistent with the Roberts Court’s reluctance to subject small-time drug offenders to mandatory removal from the United States. In Moncrieffe, for example, the Court rejected a removal order of a long-term lawful permanent resident based on a single conviction for possession of the equivalent of a few marijuana cigarettes. Similarly, in Carachuri-Rosendo v. Holder (2010), https://www.scotusblog.com/case-files/cases/carachuri-rosendo-v-holder/ the Court ruled that mandatory removal of a lawful permanent resident could not be premised on a misdemeanor conviction for possession of a single tablet of a prescription drug (Xanax) and a previous misdemeanor marijuana possession conviction.
Today’s decision will serve as an incentive to prosecutors to clearly state in charging documents and plea agreements what specific drug a drug paraphernalia charge relates to. In this case, such precision would have helped facilitate removal. It seems unlikely that the decision will have much of a general impact on the U.S. government’s efforts to remove convicted drug offenders from the country.
In sum, the decision once again demonstrates that the Roberts Court will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.