Tuesday, August 4, 2015

Immigration Law: Court Overturns Deportation for Drug Conviction

By Adam Suess

Over the last nine terms, the Supreme Court has interpreted the Immigration and Nationality Act (INA) narrowly in three cases — Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)and Moncrieffe v. Holder, 127 S. Ct. 625 (2006) — in favor of aliens. The Supreme Court’s latest decision — Mellouli v. Lynch, No. 13-1034 (June 1, 2015), slip opinion  — represents the latest brick in the road for the court in deportation cases.

In Mellouli, Moones Mellouli, a Tunisian citizen and lawful permanent resident of the United States, pleaded guilty in 2010 to possession of drug paraphernalia (containing four Adderall pills) in violation of a Kansas controlled substance law. Kan. Stat. § 21-5709.* Several months after his release from probation, Immigration and Customs Enforcement officers arrested Mellouli as deportable under federal law. Mellouli, slip op. at 1-2. Section 1227(a)(2)(B)(i) of the INA authorizes the removal of any alien “convicted of a violation of  ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). Mellouli was deported in 2012 after the Board of Immigration Appeals affirmed his deportation order even though Kansas defines “controlled substance” without reference to 21 U.S.C. § 802 and the Kansas statute includes nine substances not on the federal list. Mellouli v. Holder, 719 F.3d 995, 999 (8th Cir. 2013). The Eighth Circuit Court of Appeals denied Mellouli’s petition for review. Id. at 1002 (affirming “the [Board of Immigration Appeals]'s categorical determination that Mellouli's drug paraphernalia conviction was within § 1227(a)(2)(B)(i), without regard to whether the paraphernalia was used in connection with a federally scheduled drug”). But in 2014, the Supreme Court granted certiorari, and in June, it reversed the judgment of the Eighth Circuit.

A seven-justice majority, led by Justice Ruth Bader Ginsburg, decided that Congress intended to directly tie the removal statute to the federal controlled substance schedules listed in 21 U.S.C. § 802. “[T]o trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug ‘defined in [§ 802],’” she wrote. Mellouli, slip op. at 14. Because the scope of Kansas’ controlled substance schedules was more expansive than the federal government’s at the time of Mellouli’s conviction, and because Kansas did not “charge, or seek to prove, that Mellouli possessed a substance on the § 802 schedules,” the court concluded that federal law did not authorize Mellouli’s deportation. Id. at 2. In reaching this result, the court applied a categorical approach, where it “looks to the statutory definition of the offense of conviction, not the particulars of an alien’s behavior,” to determine whether an alien is removable. Id. at 5-6 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)).

Justice Clarence Thomas, joined by Justice Samuel Alito, argued that the majority’s reading of the removal statute requires too much and dissented. Instead, they would hold, “consistent with the text,” that a conviction under any law that sufficiently relates to 21 U.S.C. § 802 satisfies the requirements of the removal statute, “regardless of whether [the charged] conduct would also [subject a defendant] to prosecution under federal controlled-substances laws.” Id. at 2 (Thomas, J., dissenting).  “I would affirm,” Justice Thomas wrote, because the Kansas drug paraphernalia law bears enough relationship to federally controlled substances “under any reasonable definition of ‘relating to.’” Id. at 5 (Thomas, J., dissenting).

However you see it, the court’s decision should come as no real surprise. As the country collectively grapples with immigration policy, and as we turn to what will be a long and important political season, expect Mellouli and other decisions like it to frame the larger immigration debate.

* Note: After Mellouli's arrest, jail personnel found four orange pills hidden in his sock. Kansas initially charged Mellouli with trafficking contraband into a jail, a felony, but later allowed him to plead guilty to possession of drug paraphernalia, a misdemeanor. At some point, Mellouli admitted that the orange pills were Adderall.