The categorical approach isn’t going anywhere. That is clear from the Supreme Court’s majority opinion in Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), released this morning. Led by Justice Ginsburg, the seven justices in the majority took a firm line on the BIA’s decision to deviate from the time-tested categorical approach to statutory analysis used to determine whether a particular conviction results in deportability. The Board was wrong to do that, the Court explained, and thus reversed the Eighth Circuit’s decision affirming the Board. Along with seven other academics and [...]
Mellouli symposium continues: Jimson Weed
The online symposium on Mellouli v. Holder that launched Tuesday continues today with a musical interlude by Andrea Saenz, a Clinical Teaching Fellow at Cardozo Law’s Immigration Justice Clinic. Here’s Andrea’s original Jimson Weed, set to the tune of Michael Jackson’s “Billie Jean.” * * * It was more like a awful dream from a horror scene Deport an LPR math teacher based on a sock Now we’re back, seeking help, from the Court Don’t care what’s in the sock….Close enough, said the 8th Circuit Court He told me that he was charged by ICE, they were not so nice Said you had drugs and [...]
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 [...]
Rethinking Removability for Possession of Drug Paraphernalia (aka a Sock)
By Jennifer Lee Koh In Mellouli v. Holder, the Supreme Court will again clarify the reach of the nation’s drug-related immigration provisions, as well as speak to the proper application and scope of the categorical approach in immigration law. In this case, the Court will determine what the government must prove to impose immigration consequences (such as deportation and detention) on noncitizens with convictions for possession of drug paraphernalia. Section 237(a) of the Immigration and Nationality Act (INA) renders noncitizens who have already been lawfully admitted to the U.S. (such as [...]
Drawing Outside the Lines
By Nancy Morawetz When the Supreme Court hears Mellouli v. Holder this week, it will be considering an argument from the Office of the Solicitor General (OSG) about the scope of the drug deportability statute that contradicts decades of caselaw from the Board of Immigration Appeals and is internally contradictory. That alone is reason for the Court to reject the OSG’s argument. But what about the merits of the OSG’s reading? The OSG argues that federal drug deportability applies whenever a person is convicted under a state law that covers substances not penalized under federal law if the [...]
Of Socks, Categorical Analyses, and Realistic Probabilities
By Maureen Sweeney On January 14, 2015, the Supreme Court will hear oral argument in the case of Moones Mellouli v. Eric Holder, in which Mr. Mellouli challenges his removal from the United States for having been convicted of possession of drug paraphernalia (in his case, a sock). [This essay is part of an online symposium on crImmigration.com addressing Mellouli v. Holder. For other contributions, visit the symposium introduction here.] The Court has quite recently affirmed, and then reaffirmed, a straightforward application of a categorical approach to assessing the immigration [...]
Moones Mellouli & the Unholy Relic: Why A Generic Paraphernalia Conviction Under a State Law Should Not Be A Deportable Offense
By Craig Shagin The quip is now common: Deportation is a practice of traffic court procedures with death penalty consequences. The Mellouli case illustrates the first part of this comment. It is my hope the Supreme Court will provide some shock therapy to the bullying, high speed, low thought process of deporting lawful permanent residents from the United States. The oral arguments are to be heard on Wednesday, January 14, 2015. I shall be listening with particular attention to the Court’s sensitivity to just how aggressive the Board of Immigration Appeals (BIA) has become in giving [...]
BIA continues eroding categorical approach
The Board of Immigration Appeals continued its efforts to resist the principal means of analyzing statutes that the Supreme Court requires in a case involving a drug conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted via guilty plea of “sale of illegal drugs” in Connecticut. The immigration judge found that this conviction constituted illicit trafficking, a variety of aggravated felony, INA § 101(a)(43)(B), and a controlled substance offense, INA § 237(a)(2)(B)(i). On appeal, the migrant argued [...]