Characterizing the government’s argument as making “scant sense,” the Supreme Court of the United States reversed the deportation order of a lawful permanent resident convicted for carrying a controlled substance in his sock.
The petitioner, Moones Mellouli, was represented pro bono by Indiana attorney Jon Laramore, listed as the counsel of record, along with Faegre Baker Daniels’ attorneys D. Lucetta Pope and Daniel E. Pulliam. Laramore accepted the case while was still a partner at Faegre Baker Daniels. He is now the executive director of Indiana Legal Services.
Also included as counsel for Mellouli were Katherine Evans and Benjamin Casper, University of Minnesota Law School Center for New Americans’ Federal Immigration Litigation Clinic; Michael Sharma-Crawford, Sharma-Crawford Attorneys at Law, LLC; and John Keller and Shelia Stuhlman, Immigrant Law Center of Minnesota.
In a 7-2 decision, the Supreme Court found for Mellouli in Moones Mellouli v Lynch, 13-1034. Justice Ruth Bader Ginsburg wrote the majority opinion on which Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Justice Clarence Thomas dissented, joined by Justice Samuel Alito.
The majority held the Bureau of Immigration Appeals’ approach to paraphernalia offenses could have resulted in paraphernalia possession misdemeanors being treated more harshly than drug possession and distribution offense. This, the majority said, was not what Congress could have intended.
Mellouli, a citizen of Tunisia who became a lawful permanent resident of the United States in 2011, was arrested for driving under the influence and driving with a suspended license in Kansas. At the detention facility, deputies discovered four orange tablets hidden in Mellouli’s sock. The pills turned out to be Adderall, which is a controlled substance under both federal and Kansas law.
He pleaded guilty to possessing drug paraphernalia, a misdemeanor. He was sentenced to a suspended term of 359 days and 12 months probation.
After he completed his probation, Immigration and Customs Enforcement officers arrested him as deportable under 1227(a)(2)(B)(i) based on his paraphernalia possession conviction. The Bureau of Immigration Appeals affirmed the deportation order and the 8th Circuit Court of Appeals denied Mellouli’s petition for review.
He was deported in 2012.
The Supreme Court found that the BIA has adopted conflicting positions on the meaning of U.S.C. 1227(a)(2)(B)(i), which authorizes the removal of an alien “convicted on a violation of … any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).”
Under the BIA’s interpretation, convictions for drug possession and distribution trigger removal only if they involve a federally controlled substance. But convictions for paraphernalia possession trigger deportation whether or not they involve a federally controlled substance.
“The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance,” Ginsburg wrote for the majority. “Because it makes scant sense, the BIA’s interpretation, we hold, is owned no deference under the doctrine described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)."
Thomas argued that the statutory text allows for a permanent resident to be deported for committing an offense that does not involve a federally controlled substance.
“Nothing about that consequence, however, is so outlandish as to call this application into doubt,” he wrote. “An alien may be removed only if he is convicted of violating a law, and I see nothing absurd about removing individuals who are unwilling to respect the drug laws of the jurisdiction in which they find themselves.”