In a long-awaiting ruling, the U.S. Supreme Court this week issued its decision in the case of Mellouli v. Lynch, 575 U.S. ____ (2015). This is the infamous case I blogged about months ago asking “When can a sock get you deported?”
The Supreme Court decided that the Board of Immigration Appeals and the U.S. Court of Appeals for the Eight Circuit were both wrong and in the case of Mr. Mellouli, his sock will not subject him to deportation.
Mr. Mellouli is a lawful permanent resident who was convicted in Kansas for possessing drug paraphernalia, more specifically, he used his sock to hide multiple pills of the prescription drug Adderall. Adderall is a controlled substance both federally and in Kansas and Mr. Mellouli did not have a prescription for Adderall. However, Mr. Mellouli was not convicted for possessing Adderall without a prescription, he was convicted of using his sock to hide the Adderall for which he did not have a prescription. In Kansas (as in Florida (§ 893.147(1)) and many other states) it is unlawful to “possess with intent to use any drug paraphernalia,” to (among other things) store or conceal any controlled substance.
The Kansas statue (just like Florida’s) does not require that the person intend to use the paraphernalia to store or conceal a federally-controlled substance, rather it is enough that they person intended to use the paraphernalia with regards to a controlled substance under the Kansas schedule of controlled substances. The Immigration and Nationality Act, specifically INA § 237(a)(2)(B)(i), makes it a deportable offense to be convicted of any crime related to a federally-controlled substance. The Department of Homeland Security alleged that Mr. Mellouli violated this section of the Immigration and Nationality Act due to his conviction for possessing drug paraphernalia (his sock).
Mr. Mellouli argued, and the Supreme Court agreed, that because Kansas outlaws multiple controlled substances which are not illegal under federal law, he could have been convicted of possessing drug paraphernalia related to a non-federally controlled substance. Because the Immigration laws only relate to federally-controlled substances, the Court decided that the Department had not proven that Mr. Mellouli’s drug paraphernalia related to a federally-controlled substance, therefore INA § 237(a)(2)(B)(i) did not apply and he is not deportable.
This case opens up multiple avenues of debate, questions and arguments as to the decisions’ long-term ramifications.
– Can a non-U.S. citizen now safely enter a plea to a possession of paraphernalia charge in Florida or any other state without risking deportation?
– Does this decision apply to the INA § 212(a)(2)(A)(i)(II) grounds of inadmissibility related to controlled substance convictions?
– Can Immigration Judges use the modified categorical approach to look at the record of conviction to determine for what specific controlled substance a non-citizen was convicted of using the paraphernalia?
Stay tuned to my immigration blog for more insight and analysis regarding these and other questions on my favorite area of jurisprudence – crimmigration (the intersection of immigration and criminal law).
If you are a non-citizen facing any criminal charges, including drug charges, you should consult with an experienced immigration attorney as soon as possible. Do not wait until after you case is over to protect your immigration rights. Call the experienced crimmigration attorneys at Shorstein, Lasnetski & Gihon.