Supreme Court Rejects Removal Based On Misdemeanor Drug Paraphernalia Conviction
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. Yes, a sock.
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, employing a tactic often used by criminal defense attorneys representing non-citizens. 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.
At the heart of the arguments before the Supreme Court was whether Chevron deference was in play. That requires the judicial branch, here the Supreme Court, to defer to a federal agency’s reasonable interpretation of a statute, here the Board of Immigration Appeals, where a statute passed by Congress is ambiguous. The government argued that the possession of a sock conviction was “related to” a Federally defined controlled substance.
The court held that such an interpretation was unreasonable and thus deference under Chevron was not warranted. Ginsburg wrote the opinion and stated, “[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.”
Clarence Thomas and Samuel Alito, both appointed by Republican presidents, dissented. They argued the broad “relating to” language in the removal statute resolved the case for them. They argued “faithfully applying [the] text means that an alien may be deported for committing an offense that does not involve a federally controlled substance.”
Under Chief Justice Roberts, the Supreme Court has now held that lawful permanent residents cannot be deported for possession of a sock used to hold Adderall, a couple of joints, or a single tablet of Xanax, which is commendable, but also kind of silly. Is that really what our federal law enforcement needs to be concerned with? Sock possession? If the hundreds or thousands of dollars spent by the federal government on Mr. Mellouli’s case were spent on drug education or rehabilitation, would these cases have ever occurred?
Prosecutors are already loath to omit the controlled substance at issue in state courts, and this decision may bolster that position. If they’re not willing to do so, then defendants in state court will have no choice but to continue to try these cases before a jury.
The full text of the decision can be read here: http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf