By Jason Cade
On Wednesday, Jennifer Koh noted that Mellouli v. Lynch, 575 U.S. — (2015), marks the fourth time in ten years that the federal government has zealously litigated the application of harsh removal provisions to lawfully present noncitizens with minor drug convictions all the way to the Supreme Court, only to lose. For my contribution to this online symposium, I’d like to put the Mellouli decision into an even broader context. My thoughts here draw on ideas that I am developing in a forthcoming article, entitled Enforcing Immigration Equity, to be published later this year in the Fordham Law Review.
As most readers of this blog will be aware, Congress significantly amended the immigration code in the 1990s. A series of laws broadened the grounds for removal, especially for noncitizens with any kind of criminal history, while nearly eradicating opportunities for discretionary relief. The result has been no less than a radical transformation of immigration law, the full implications of which are still being realized.
In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This responsibility is amplified by the size of the deportable population in the United States, which dwarfs current resources for enforcement, and the inability of most unauthorized persons to regularize their status under current law. Seen in this light, the Obama administration’s targeted use of resources and implementation of discretionary initiatives such as Deferred Action for Childhood Arrivals reflect efforts to systematize equitable decision-making principles within the new world of American immigration law.
The problem with this system is that reliance on executive discretion alone has failed to ensure the justifiability of individual deportation decisions. Of particular importance, the Department of Homeland Security has all but abandoned consideration of the normative merits of removal when it comes to noncitizens with any kind of criminal history. Indeed, DHS uses criminal history as an indiscriminate marker of undesirability, regardless of the seriousness of the underlying offense, the passage of time, the permanent resident status of the noncitizen, the severity of hardship that deportation would cause for the noncitizen’s family, and any other mitigating factors. The Mellouli case – in which the government deported a lawful permanent resident with significant equities after pleading guilty to misdemeanor possession of a sock as drug paraphernalia – provides but one illustration of the administration’s near total disregard for equitable individuation in cases involving persons with criminal history.
In fact, Mellouli is but the latest in a series of decisions that evidence the Court’s growing discomfort with the punitive and inflexible turn that immigration law took in the 1990s, and particularly with the failure of the modern system to ensure that the criminal removal provisions are fair when applied to individual human beings. Here, I will briefly highlight some of this emerging jurisprudence.
In Padilla v. Kentucky, 559 U.S. 356, 360 (2010) the Court zeroed in on the fact that “immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation,” such that “the drastic measure of deportation . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.” It would be constitutionally unfair, the Court reasoned, to allow persons to plead guilty without knowing that the severe penalty of deportation would follow.
Rooted in the Sixth Amendment’s command that criminal defendants be afforded adequate assistance of counsel, Padilla as a technical matter put constitutional obligations only on criminal defense attorneys. As a practical matter, however, the ruling pressures prosecutors and judges to ensure that counsel has adequately advised her client so that the conviction cannot later be undone on ineffective assistance of counsel grounds. Moreover, Justice Stevens’ opinion clearly envisioned the Sixth Amendment ruling it handed down to increase the possibility that actors in the criminal proceedings would evaluate the appropriateness of the immigration consequences that would result, and adjust the conviction and sentence appropriately. Id. at 373.
If one goal of Padilla was to create opportunities for noncitizen defendants to reach plea deals that avoid deportation or that preserve possibilities for equitable discretionary relief in later deportation proceedings, Mellouli and the other categorical approach cases decided over the last ten years have worked toward the same objective, by narrowing the range of criminal convictions that trigger mandatory removal.
In Carachuri-Rosendo, 560 U.S. 563 (2010), for example, the government pressed the argument that Carachuri-Rosendo’s two minor drug possession crimes would have made him a felony recidivist drug offender under the Controlled Substances Act had he been federally prosecuted. The Court noted that “[t]his type of petty simple possession offense” does not comport with the everyday understanding of drug trafficking, and emphasized that the statute makes noncitizens ineligible to seek equitable cancellation only if they have actually been convicted of an aggravated felony. Importantly, the Court focused on the need to preserve prosecutorial discretion in the conviction-to-removal pipeline. Indeed, as the Court observed, in Carachuri-Rosendo’s criminal case, “the prosecutor specifically elected to ‘[a]bandon’ a recidivist enhancement under state law.” Id. at 579.
The Court took a similar approach in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which concerned a longtime permanent resident who pleaded guilty as a first-time offender to possession of marijuana with intent to distribute under a state statute that criminalized social sharing for no remuneration in addition to selling drugs. Applying the categorical approach to the state conviction to find insufficient overlap with a federal drug trafficking offense, the Court rejected the government’s argument that Moncrieffe was deportable as an aggravated felon and therefore ineligible for discretionary relief. Justice Sotomayor’s opinion for the seven-Justice majority concluded by chastising the government for repeatedly defying “commonsense” in its approach to these cases.
Following an arrest for driving offenses, Moones Mellouli was held in detention, where authorities discovered four Adderall pills in his sock. The state prosecutor then filed a criminal complaint against Mellouli for trafficking contraband in jail. Somewhere along the way a deal was struck, and the amended complaint to which Mellouli pleaded guilty charged only the lesser offense of possessing drug paraphernalia – to wit, a sock – and did not identify the substance in the sock. Nevertheless, the government pressed his deportability on controlled substance grounds and in fact deported him. Despite his significant equities, as recounted by the Court, Mellouli appears to have been ineligible to seek discretionary cancellation of removal due to insufficient accrual of five years presence in lawful permanent resident status at the time of his arrest and conviction. As others have already explained, the Court applied the categorical approach to again reject the government’s zero-tolerance position, holding that drug paraphernalia convictions are not necessarily removable offenses where the state law sweeps more broadly than federal law.
Importantly, Justice Ginsburg’s opinion for the majority quoted, with apparent approval, Professor Koh’s observation that the categorical approach enables noncitizens “to enter ‘safe harbor’ guilty pleas” that avoid immigration sanctions. See Slip Op. at 7. Moreover, Ginsburg conjectured, Mellouli’s own plea may be just such an instance, in light of the reduced charge and the amended complaint’s omission of the nature of the pills in his sock. As in the other categorical approach cases, Mellouli emphasized the incongruity between the relatively minor conviction at issue and the severe consequence of deportation. The Court noted that under federal law as well as those of 19 States, Mellouli’s conduct would not even be considered a criminal offense. Id. at 5. These concerns came across clearly during oral argument in the case, which is partly why it was unsurprising to again see seven Justices oppose the government’s position.
Mellouli and the other recent Supreme Court rulings in this area thus work hand-in-glove with Padilla to inject considerations of individual equity into our nation’s deportation process and to avert some unduly harsh outcomes. Padilla pushes defense attorneys to seek safe harbors for their noncitizen clients and prosecutors to weigh immigration-law consequences in exercising their discretion to strike individualized plea deals. Decisions like Mellouli help insulate such criminal court deals against the federal government’s indiscriminate approach with respect to noncitizens with any criminal history, while Carachuri-Rosendo and Moncrieffe create openings for such deals to channel equity-based discretionary power to immigration judges – power that has been constrained in important ways by modern-era statutory reforms.
In short, Mellouli reveals that the Court continues to be motivated to more closely scrutinize the wooden and often inhumane operation of the modern-day immigration system. Underlying this emerging jurisprudence is the principle that severe deportation penalties imposed on the basis of criminal convictions must be predicated on considerations of individualized justice.
Jason Cade is an Assistant Professor of Law at the University of Georgia Law School.
. See, e.g., Mellouli v. Holder, Oral Argument at 29-30 (Scalia, J.: “He was convicted of having a sock and you think that’s more than tenuously related to these Federal drugs.”); id. at 33 (Kagan, J.: “[P]araphernalia offenses are generally extremely minor offenses; they’re not felonies.”); id. at 50 (Roberts, C.J.: “It’s only because you give ‘relating to’ such a broad construction that you get . . . the unusual situation . . . that the State thinks it’s a very minor offense and yet it can become so significant that the person’s deported.”).
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