By Barbara L. Jones
The Daily Record Newswire
MINNEAPOLIS — Some will read the facts in the case of Mellouli v. Holder and say, “Really?” Others — such as the Board of Immigration Appeals and the 8th U.S. Circuit Court of Appeals — won’t.
Attorneys and student attorneys at the Center for New Americans at the University of Minnesota, and their partners, hope at least five U.S. Supreme Court justices are among the skeptics who question a deportation for possession of drug paraphernalia without any evidence of what the drug is.
On June 30, the high court granted the center’s petition for a writ of certiorari in Mellouli, which represents a split between the 8th and 9th Circuits, on one hand, and the 3rd and 7th, on the other.
The question is whether a lawful resident noncitizen may be deported for possession of drug paraphernalia in the absence of any proof that the paraphernalia is related to a substance listed in the Controlled Substance Act, Title 21, Section 802.
Or does the government get the benefit of the type of conclusion reached by the 8th Circuit — that there was little more than a theoretical possibility that a conviction under Kansas law would not involve a federally controlled substance.
There is no record in the immigration proceeding what the substance was, and there are some substances prohibited by Kansas, such as jimson weed, that are not federally controlled.
“The case illustrates the kind of low-level offense that can get swept up [in immigration proceedings] and that is concerning if you don’t have a burden on the government to prove the requirements of the statute. It’s the kind of offense that the criminal justice system doesn’t attach a lot of significance to,” said Kate Evans, teaching fellow at the center.
Moones Mellouli entered the U.S. on a student visa and later was granted lawful permanent status. He received an undergraduate degree magna cum laude and received two master’s degrees.
He taught mathematics and then became an actuary. He was detained for a driving under the influence offense and then charged with trafficking contraband in jail. The charge was amended to possession of drug paraphernalia because he had the controlled substance in his sock. The amended charge did not identify the substance.
The removal proceedings followed about 18 months later. The immigration judge said that the government did not have to show that the conviction involved a controlled substance under federal law. The Board of Immigration Appeals affirmed, finding that a conviction for possession of drug paraphernalia involves drug trade in general and thus was within the removability statute, 8 U.S.C. sec.1227. “The immigration court said it’s a conviction under a state drug law and that’s enough,” Evans said.
The Center’s attorneys are assisted by John Keller, head of the Immigrant Law Center of Minnesota, and Jon Laramore, of Faegre Baker Daniels in its Indianapolis office. Agencies do get some leeway to interpret statutes, Laramore told Minnesota Lawyer, but the statute that is at issue clearly says that when removal is based on drug paraphernalia, the government must prove a connection to a federally controlled substance under 21 U.S.C.802.
In contrast, he said, the government has taken the position that essentially all paraphernalia offenses lead to removal. Other circuits have interpreted the law as Laramore and his colleagues do.
“This will give the Supreme Court the opportunity to ensure uniform interpretation across the country and that the law passed by Congress is followed,” Laramore said.
Laramore’s practice is almost exclusively appellate work, and this will be his third argument at the U.S. Supreme Court. “I feel lucky to be associated with this case,” he said.
On appeal to the 8th Circuit, Mellouli argued that the record of conviction did not identify the substance, the paraphernalia — the sock — lacked connection with any particular substance, and Kansas law included substances not on the federal controlled substance list.
But the court sided with the government, which argued that the conviction involved the drug trade and that all that was needed was to establish that the paraphernalia was related to a state controlled substance. It said that the BIA’s conclusions about the controlled substances were entitled to deference as long as they were not arbitrary or manifestly unreasonable.
The overlap between Kansas drug law and the federal law was “close enough,” Evans said.
The court denied en banc review. Mellouli was deported without a waiver to return.
It appears that the case will be argued the week of January 12, Laramore said.
Evans and the others will ask the Supreme Court to follow the reasoning of the 3rd Circuit. In Rojas v. Attorney General of the United States, that court held that the government failed to establish that a lawful permanent resident was removable based on his conviction for violating Pennsylvania’s drug-paraphernalia statute, where the state’s controlled-substance schedules included some substances that were not federally controlled. The 3rd Circuit addressed the case en banc just weeks after Mellouli but declined explicitly to follow it. Twelve of the 3rd Circuit judges disagreed with the 8th Circuit.
The 7th Circuit also concluded that the substance involved in the paraphernalia crime must be on the federal schedule. The court said, “If a state decided to outlaw the distribution of jelly beans, then it would have no effect on one’s immigration status to deal jelly beans, because it is not related to a controlled substance under the act.”
The petition was granted on June 30, while the United States was in the midst of a surge of child migration that was unwelcome to many. Weeks earlier the Supreme Court held that children could age out of their place in line for visas and have to start over. The question is how difficult is a fact pattern presented by an immigrant in possession of drug paraphernalia — even a sock.
“I’m very worried about the political climate in this country but not how it affects this case,” Casper said. “We’re going to get a very fair hearing at the Supreme Court and this is going to be a case about the statutes and the language Congress put into law. That’s what they do. I think this is the kind of case and kind of facts that illustrate the legal issue in a way that might draw a lot of votes for our position.”
Evans agreed, saying that one of the reasons the case is going up is that it presents a clean issue: What does the statute say and what does the government have to prove?
Furthermore, Casper said, the Supreme Court in recent years has reviewed a number of BIA cases in the criminal context and repeatedly found their analysis lacking. Moncrieffe v. Holder, decided in 2013, is a good example, Evans said. The court rejected the BIA position because it was requiring immigration judges to retry criminal cases, she said.
“Moncrieffe reflects the Supreme Court’s realization that it’s dealing with an agency that’s had some trouble analyzing criminal statutes,” Casper said.
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