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When can a sock get you deported?

Moones Mellouli came to the United States legally and became a lawful permanent resident. He went to college and attained multiple advanced educational degrees and became a professor. In 2009 he was arrested for DUI and the police found Adderall pills in his sock. Adderall is a drug that requires a prescription and is a federally controlled substance.

Professor Mellouli managed to avoid a conviction for illegally possessing the Adderall, which, given his immigration status, would have definitely made him removable under INA § 237(a)(2)(B)(i) for having been convicted of an offense relating to a controlled substance. Rather than a conviction for possessing the Adderall illegally, he managed to plead to a lesser offense, possession of drug paraphernalia, more specifically, the sock in which he illegally stored and concealed the Adderall.

Yes, you read that correctly, not only is it a crime to illegally possess a controlled substance, but in most states, it is also illegal to possess any object that a person uses or intends to use to:

plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter; or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. . .

Florida Statute § 893.147(1)(a)-(b) (used for an example of a drug paraphernalia statute).

Professor Mellouli thought that his plea to the drug paraphernalia charge would help him mitigate or avoid any negative immigration consequences. However, he was wrong. Immigration and Customs Enforcement decided they wanted to deport Professor Mellouli for his paraphernalia convection, and they were successful.

Again, you read that correctly, Professor Mellouli, a lawful permanent resident, was convicted and deported for illegally using his sock to “store, contain or conceal” his Adderall pills.

There is an old adage in the law, “bad facts make bad law.” Professor Mellouli appealed his case all the way to the U.S. Supreme Court. The Court heard oral arguments recently for why Professor Mellouli’s possession of a sock conviction should not have caused him, a lawful permanent resident, to be deported. Reportedly during oral arguments the Justices appeared bothered by the relatively minor nature of this offense leading to an educated, lawful permanent resident being deported.

If the Justices decide that the immigration laws related to controlled substances are too draconian and lead to unjust results, they very well may try to find a way to strike down the deportation order. In doing so, they may overrule the precedent of the Board of Immigration Appeals and Circuit Courts that have held that a conviction for possessing with the intent to use drug paraphernalia is a offense related to a controlled substance, and therefore, a deportable offense.

A conviction for a drug offense that is not related to possessing a small amount of cannabis for personal use (simple possession) almost always leads a non-citizen to face deportation. The drug offense also bars a non-citizen from many forms of immigration relief for which they may otherwise be eligible and would help them avoid deportation.

In the recent past, the Supreme Court has struck down or limited the Government’s ability to remove criminal non-citizens from the United States on a regular basis. Professor Mellouli’s case may be the next in those line of cases.

John Gihon is an immigration and criminal defense attorney with the Law Offices of Shorstein, Lasnetski & Gihon. If you are facing deportation for a drug offense, call us today for a free consultation.