By Sejal Zota
In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court returned a measure of sanity to the government’s deportation rules. For the fourth time in a decade the Supreme Court overwhelmingly rejected the government’s use of the nation’s immigration laws to deport an individual with a minor drug conviction. Unfortunately, thousands of families were already separated from their spouses, children, parents, and siblings by the time our high court could intervene.
This case involved a math teacher, fiancé of a U.S. citizen, and permanent resident who was deported and separated from his family for possessing a sock holding pills and therefore deemed paraphernalia. As the Court noted, 19 states and federal law do not even make this a crime. And where it is, it is generally treated as a low-level misdemeanor with few criminal consequences. Id. at 4-5.
That didn’t stop the Board of Immigration Appeals (BIA) from interpreting the nation’s already harsh deportation laws to find Mr. Mellouli deportable under a statute requiring deportation for convictions relating to the federal list of controlled substances. INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). But the record of Mr. Mellouli’s conviction did not disclose anything about the drug he had socked away. And at the time of conviction, Kansas law banned plenty of substances—a list far broader than those defined in the federal drug schedules. For example, salvia was on the Kansas list, a type of mint plant which Miley Cyrus made news smoking.
As Mr. Mellouli pleaded to the high court, he could not be deported for possessing the sock unless his conviction was directly tied to the federal list of controlled substances. But it was not. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs were not on the federal list of controlled substances. That means Mr. Mellouli’s Kansas crime was no basis for deporting him. And yet the BIA did, based on internally-inconsistent rationales the Supreme Court has now rejected. And it did so at a time when the Department of Justice has recognized the permanent harm on communities of color from the failed War on Drugs. While we have begun to make progress rolling back harsh sentencing for drug offenses at the state and federal level, the agency’s actions here and in the deportation context undermine that progress.
The BIA has not only been inconsistent, but also arbitrary. For more than a half century, it has required that a drug possession and distribution conviction involve a drug on the federal list before the government may rely on it to deport. Matter of Paulus, 11 I&N Dec. 274 (BIA 1965). But it has applied quite a different rule when the Board, and it alone, deems a state crime as related to the “drug trade” (language not found in the statute). In that case, the BIA has claimed, it can deport even if the crime involves a drug not on the federal list. And crimes involving the “drug trade” stretch so far as to include holding paraphernalia—something that isn’t punishable under federal law. Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009).
Our amicus brief (that of the National Immigration Project of the National Lawyers Guild, with the National Association of Criminal Defense Attorneys and the Immigrant Defense Project) pointed out how these conflicting interpretations impact an immigrant defendant’s ability to make an informed plea. The Supreme Court in Padilla v. Kentucky required defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. 559 U.S. 356, 369 (2010). But when the BIA shifts and shuffles interpretations of the same statutory provision, defense attorneys lack the ability to accurately advise their clients and craft immigration-safe plea bargains. And some misdemeanor defendants are never provided with a defense attorney, or unknowingly waive that right to an attorney. These noncitizens will not understand the disproportionate and life-changing consequences of their pleas until it is too late. Mr. Mellouli, though, had the good fortune of having two National Immigration Project members, Michael and Rekha Sharma-Crawford, involved in his defense.
Fortunately, the Court sided with Mr. Mellouli, and found that the BIA’s harsher treatment of minor paraphernalia possession made “scant sense.” Id. at 11. Thus, it held that “to trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug ‘defined in [the federal drug schedules].’”Id. at 14. Because the government had not done so, the Court ruled that Mr. Mellouli was improperly deported.
Although Justice Ginsburg framed a narrow ruling for the Court, there is more than what first meets the eye. Her opinion affirmed the requirement of applying what’s known as the “categorical approach.” This is the first time the Court has done so outside the context of an aggravated felony. The categorical approach requires factfinders to look to the statutory definition of the offense of conviction and not to the underlying conduct. The result is basic fairness, predictability, and efficiency. As the Court explained, it “enables aliens to anticipate the immigration consequences of guilty pleas in criminal court, and to enter ‘safe harbor’ guilty pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.” Id. at 7 (citing crImmigration.com symposium contributors Jennifer Lee Koh and Alina Das).
The Supreme Court built upon its prior precedent in Padilla to once again acknowledge the outsized influence that immigration consequences carry in the noncitizen defendant’s calculus to plead guilty. But the Court went even further – it recognized defense counsel’s role in negotiating and mitigating potential adverse immigration consequences. This language thus provides additional support for requiring defense counsel to take such steps under the Sixth Amendment where possible. Indeed, the Court was motivated here at least in part because Mr. Mellouli’s counsel in fact did negotiate a plea to a paraphernalia offense—but without specifying the substance—specifically to avoid adverse immigration consequences. See id. n. 5. The Court is sounding a warning that a noncitizen’s expectations around a plea bargain should be afforded protection. One would hope that the BIA hears the call and shapes its practices so that noncitizens’ understanding of the law at the time of a plea may be honored, even if removal proceedings occur after the law has adversely changed.
At the end of the day, the Court cleared up the BIA’s inconsistencies and set a clear and intelligible test, against which noncitizens and their attorneys can compare proposed plea dispositions. The Court restores our hope that noncitizens can avoid disproportionate consequences of drug-related offenses, with the help of attorneys who can now rely on clear guidance.
Sejal Zota is the Legal Director of the National Immigration Project of the National Lawyers Guild, where she engages in nationwide litigation and policy advocacy, and provides training and technical assistance around a broad range of immigration issues, including criminal-immigration issues and post-conviction relief.
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