The US Supreme Court ruled in favor of a Tunisian immigrant


The US Supreme Court ruled in favor of an immigrant from Tunisia

Being a legal permanent resident doesn't make an individual immune from deportation. Under the Immigration and Nationality Act ("INA"), a noncitizen convicted of an "aggravated felony" is not only deportable, but also ineligible for discretionary relief. 8 U.S.C. §1227(a)(2)(A)(iii). INA specifically authorizes the removal of any alien "convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance." 8 U.S.C. §1227(a)(2)(B)(i).

However, the federal government's scope in deporting legal permanent residents on drug-related grounds is limited. On June 1, 2015, the U.S. Supreme Court decided Mellouli v. Lynch, 575 U.S. ____ (2015), holding that a state-law drug conviction does not necessarily make a noncitizen deportable, unless that conviction involves a federally listed controlled substance under section 802 of Title 21.

Mellouli, a citizen of Tunisia, came to the United States on a student visa in 2004. In 2009, he became a conditional permanent resident after completing his education and, in 2011, a lawful permanent resident. The issue arose in 2010 when he was arrested for driving under the influence. During a postarrest search in a Kansas detention facility, officers discovered four unidentified tablets hidden in his sock. These tablets turned out to be Adderall, an amphetamine based drug typically prescribed to treat attention-deficit hyperactivity disorder. Adderall is a controlled substance under both federal and Kansas law.

Ultimately, Mellouli was charged with only the lesser offense of possessing drug paraphernalia – a sock. The criminal complaint alleged that Mellouli had possessed with intent to use drug paraphernalia ("a sock") "to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance." Mellouli pleaded guilty to the paraphernalia possession charge and was sentenced to a suspended term of 359 days and 12 months' probation.

In February 2012, several months after Mellouli successfully completed his probation, Immigration and Customs Enforcement officers arrested him as deportable under 8 U.S.C. §1227(a)(2)(B)(i) based on his paraphernalia possession conviction. An Immigration Judge ordered him deported, and the Board of Immigration Appeals (BIA) and the Eight Circuit affirmed the order. Yet, the United States Supreme Court held federal law did not authorize Mellouli's removal based on his underlying conviction.

First, the Supreme Court held that the state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. Based on this approach, an alien's actual conduct is irrelevant to the inquiry, and courts shall only look to the statutory definition of the conviction offense. See also Carachuri-Rosendo v. Holder, 560 U.S. ____ (2010) (holding that an immigration court cannot subsequently enhance the state offense of record just because facts known to it would have authorized a greater penalty). Thus, whether Mellouli possessed a controlled substance under both federal and Kansas law is irrelevant in the deportation proceeding since he was only found guilty of using his "sock" as a drug paraphernalia.

Second, the Court held that an alien's state conviction for offering to sell an unidentified "narcotic" is not a deportable offense, because it is possible that the conviction involved a substance controlled only under the state, not federal, law. See Matter of Paulus, 11 I. & N. Dec. 274 (1965). Under this analysis, Mellouli would not be deportable because he pleaded guilty to concealing unnamed pills in his sock. At the time of Mellouli's conviction, Kansas's list of controlled substances included at least nine substances not included in the federal law. Again, the immigration court shall only consider an alien's conviction rather than his or her actual conduct. In short, Mellouli's drug-paraphernalia conviction did not render him deportable because the state law under which he was charged required no proof by the prosecutor that he used his sock to conceal a substance prohibited under section 802 of Title 21 in federal law.

Lastly, the Court rejected the government's argument that a paraphernalia conviction "relates to" any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is defined in section 802. The Court rejected this argument because under this approach "an alien is not removable for possessing a substance controlled only under [state] law, but he is removable for using a sock to contain that substance." It would only lead to an anomalous result that "minor paraphernalia possession offenses are treated more harshly than drug possession and distribution offenses."

The immigration law is slowly changing to prevent mass deportation based on minor drug offenses. The US Supreme Court sent a clear message to the government not to deport people for minor offenses. However, many people are still subjected to deportation for state drug offenses that are not necessarily deportable under our federal laws. Immigration law is complex and a fast changing area of the law. Being a legal permanent resident does not make an individual immune from deportation. If you are a subject to deportation or removal proceedings, please consult an immigration lawyer immediately.