Almost a month ago, on Jan. 14, 2015, the Supreme Court heard oral arguments in Mellouli v. Holder, No. 13-1034. This case involves questions of drug possession and deportation and could have a big impact on immigration law.
In 2010, Moones Mellouli, a Tunisian citizen lawfully residing in the United States (Kansas, to be exact), was arrested and eventually convicted of possession of drug paraphernalia. Mellouli had been residing in the U.S. for the last eight years and had a fiancée. According to the facts, police pulled Mellouli over and found Adderal tablets in his sock; essentially, he was convicted of possession of a sock used to hide drugs. However, the conviction record did not specify which drug(s) Mellouli possessed. In 2012, the government attempted to deport Mellouli, pursuant to Section 237(a)(2)(B)(1) of the Immigration and Nationality Act (INA). According to this statute, an alien may be deported if he has been convicted of violating any federal or state law “relating to a controlled substance,” as defined by Section 802 of Title 21 of the Controlled Substances Act (CSA).
After going through Immigration Court, the Board of Immigration Appeals, and the U.S. Court of Appeals, the case finally made its way to the Supreme Court. The question before the court is: To trigger deportability, must the government prove the connection between a drug paraphernalia conviction and a substance specifically listed in the CSA?
Mellouli argues that the offense prompting deportation must be related to a substance listed by federal statute. To trigger deportability, the government needs to prove that Mellouli’s sock conviction relates to a substance found in the Controlled Substances Act. If a substance is illegal by state law, but not covered by federal law, then it does not trigger deportability. In other words, according to Mellouli’s argument, a state’s controlled substance list must mirror the CSA’s list in order for a conviction to satisfy the INA. Since Mellouli’s conviction did not specify the controlled substance that Mellouli possessed, he did not violate any law relating to a controlled substance (as defined by the CSA).
Based on the oral argument, the Supreme Court is likely to rule in favor of Mellouli. Initially, most of the argument focused on specific statutory text, especially the language “relating to a controlled substance.” Some of the judges questioned whether a connection between a drug conviction and the CSA language is even necessary to trigger deportation. However, several judges questioned whether the offense of paraphernalia possession should result in deportation. Justice Kagan called misdemeanor drug paraphernalia convictions “extremely minor offenses” and questioned whether conviction should justify deportation. Justice Ginsberg and Chief Justice Roberts pointed out that possession of a sock could not be federally prosecuted, and that several state drug possession laws are not covered by federal law. Justice Scalia expressed skepticism that being convicted of possessing a sock was more than just “tenuously related” to federally listed drugs.
Impact on Washington State
If the Supreme Court decides in Mellouli’s favor, the government’s ability to deport aliens would be diminished. In order to deport someone, the burden would fall on the government to prove a connection between a drug paraphernalia conviction and federal statute. Deportation does not trigger if either the conviction record is silent as to the type of drug, or if the drug is prohibited only by state law. For example, Washington drug paraphernalia laws cover much of the same ground as the Kansas laws discussed in Mellouli. RCW 69.50.102(10) lists as drug paraphernalia “[c]ontainers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.” A formal decision is expected in late June 2015.