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Online symposium on crimmigration law: Supreme Court hears Mellouli v. Holder

Can a sock result in removal? That’s the practical question that the Supreme Court will have contend with when it hears oral arguments in Mellouli v. Holder tomorrow. To clarify the case, crImmigration.com is launching an online symposium today featuring several practitioners and scholars with special insight into the key issues Mellouli raises.

Today’s contributors—Alina Das, Jennifer Lee Koh, Nancy Morawetz, Maureen Sweeney, and Craig Shagin—represent a cross-section of academics and practitioners who have followed the issues that Mellouli raises for some time. All bring unique insight—whether it’s in-the-trenches strategizing, deep reflection, or a combination of both.

  • Alina Das, Revisionist History: The Government’s Latest Attempt to Ignore the Categorical Approach in Mellouli v. Holder
  • Jennifer Lee Koh, Rethinking Removability for Possession of Drug Paraphernalia (aka a Sock)
  • Nancy Morawetz, Drawing Outside the Lines
  • Maureen Sweeney, Of Socks, Categorical Analyses, and Realistic Probabilities
  • Craig Shagin, Moones Mellouli & the Unholy Relic: Why A Generic Paraphernalia Conviction Under a State Law Should Not Be A Deportable Offense

To lay a foundation for their analyses, I’ll provide a quick overview of the legal background from which Mellouli rises. At bottom, Mellouli addresses the breadth of drug-based removal. The Immigration and Nationality Act (INA) contains, as I explain in my forthcoming book Crimmigration Law (American Bar Association 2015), “a sweeping provision that ensnares most drug offenses.” The controlled substance offense—found in similar forms at INA § 237(a)(2)(B)(i) and § 212(a)(2)(A)(i)(II)—authorizes removal upon conviction for any offense “relating to a controlled substance offense.” Though this language captures a substantial number of drug crimes, it’s not without limit. “Since 1965,” I explain in my book, “the BIA has steadfastly maintained that a state drug possession crime can result in deportation or exclusion only if the government shows that the conviction necessarily involved a substance punished by federal drug laws.” See Matter of Paulus, 11 I&N Dec. 274, 276 (BIA 1965).

Mellouli threatens that longstanding limitation. Relying on the “relating to” language, the Board of Immigration Appeals concluded in 2009 that the controlled substance offense provision captures any “conduct associated with the drug trade in general.” Matter of Espinoza, 25 I&N Dec. 118, 121 (BIA 2009). Enter the Eighth Circuit. In Mr. Mellouli’s case, it adopted the BIA’s position. As I explain in Crimmigration Law:

Adopting the BIA’s interpretation as reasonable, the Eighth Circuit added that the “relating to” phrase “reflects congressional intent to broaden the reach of the removal provision to include state offenses having ‘a logical or causal connection’ to federal controlled substances,” and concluded that any drug paraphernalia conviction in a state that has adopted the Uniform Controlled Substances Act satisfies this requirement.[1] Taking a similarly broad view, the Seventh Circuit concluded that a conviction “for distributing substances that substantially resemble controlled substances”—i.e., giving an undercover police officer a chocolate bar that purportedly contained, but did not actually contain, a hallucinogenic included in the federal CSA—related to a controlled substance offense because the “state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance.”[2]

Will the Supreme Court follow the BIA and Eighth Circuit? Or will it hew more closely to the longstanding requirement that a state drug offense must necessarily involve a federal controlled substance to result in removal? Equally importantly, will it hold DHS to its burden of proving this essential overlap when the federal government is attempting to remove someone who has been admitted?

Time will tell. For now, let’s turn to the outstanding analyses contributed by the symposium participants.

[1] Mellouli v. Holder, 719 F.3d 995, 1000 (8th Cir. 2009), cert. granted, 134 S. Ct. 2873 (2014); but see Rojas v. Attorney General, 728 F.3d 203, 219 n.18 (3d Cir. 2013) (declining to follow Mellouli).

[2] See Desai v. Mukasey, 520 F.3d 762, 763, 764 (7th Cir. 2008).

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Posted by César on January 13, 2015 on 4:05 am 13 Comments
Filed Under: categorical approach, controlled substance offense, Symposium, U.S. Supreme Court, Uncategorized

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  1. Jennifer Koh Writes for Online Symposium on Mellouli v. Holder (Pending Before SCOTUS) | Western State College of Law - Faculty Blog says:
    January 13, 2015 at 2:29 pm

    […] an online symposium hosted by a leading blog on criminal and immigration law, CrImmigration.com, Prof. Jennifer Koh has weighed in with her thoughts on Mellouli v. Holder, a case currently […]

    Reply
  2. Wednesday round-up | My Legal Story Blog says:
    January 14, 2015 at 7:18 am

    […] crImmigration is hosting an online symposium to discuss the issues raised by Mellouli v. Holder, the immigration case in which the Justices will hear oral arguments today. […]

    Reply
  3. Osibogun and Partners - Law Firm says:
    January 14, 2015 at 12:40 pm

    […] crImmigration is hosting an online symposium to discuss the issues raised by Mellouli v. Holder, the immigration case in which the Justices will hear oral arguments today. […]

    Reply
  4. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants — LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything l says:
    January 15, 2015 at 5:07 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

    Reply
  5. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants | World Politics | NigerianNation News says:
    January 15, 2015 at 5:26 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  6. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants | So Stadium Status says:
    January 15, 2015 at 5:37 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  7. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants - NEWS | Phones | Nigeria Science | Technology |Computers says:
    January 15, 2015 at 8:15 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  8. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants | AGReGate.info says:
    January 15, 2015 at 8:20 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  9. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants | Omaha Sun Times says:
    January 15, 2015 at 9:02 pm

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  10. Venturuso - Hispanic Venture Capital News says:
    January 16, 2015 at 6:21 am

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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  11. When Is Possession of a Sock a Deportable Offense? : Immigration Impact says:
    January 22, 2015 at 4:25 pm

    […] issue in the case is a statute which makes individuals who have been “convicted of a violation of . . . any law or […]

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  12. When is Possession of a Sock a Deportable Offense? | Larra International Consultant LTD says:
    January 22, 2015 at 5:28 pm

    […] issue in the case is a statute which makes individuals who have been “convicted of a violation of . . . any law or […]

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  13. Deportation for Possessing a Sock: Supreme Court Case Reflects How the War on Drugs Fuels the War on Immigrants | Political Ration says:
    January 26, 2015 at 8:20 am

    […] legal analysis of the case, check out the Mellouli symposium on the crImmigration Blog and the SCOTUSblog’s […]

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