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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