On June 1, 2015, the U.S. Supreme Court decided Mellouli v. Lynch, holding that a legal permanent resident may not be deported for a state-law drug conviction unless that conviction necessarily involves a drug covered by the federal Controlled Substances Act. Faegre Baker Daniels LLP represented the prevailing petitioner, Moones Mellouli.
Federal immigration law provides that an alien who is “convicted of 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” the Controlled Substances Act is deportable. 8 U.S.C. §1227(a)(2)(B)(i). Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, was discovered to be using his sock to hide controlled substances. He pleaded guilty only to violating a Kansas statute prohibiting possession of drug paraphernalia — the paraphernalia being his sock. At the time, Kansas’ controlled-substance schedules included at least nine substances not controlled under federal law. The Board of Immigration Appeals and the Eighth Circuit held that the paraphernalia offense nonetheless made Mellouli removable because paraphernalia crimes relate to “the drug trade in general,” including federally controlled substances.
The Supreme Court reversed with a 7-2 vote, holding that the additional substances in Kansas’ schedules meant that Mellouli’s state-law crime did not make him removable. The Court applied “the categorical approach historically taken in determining whether a state conviction renders an alien removable under the immigration statute.” Under this approach, “[t]he state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. An alien’s actual conduct is irrelevant to the inquiry, as the adjudicator must presume that the conviction rested upon nothing more than the least of the acts criminalized under the state statute.” The Court concluded that Mellouli was not deportable because “the state law under which he was charged categorically related to a controlled substance, but was not limited to substances ‘defined in [federal law].’”
The Court rejected the government’s argument that all paraphernalia convictions relate to controlled substances generally, noting that it would result in “[t]he incongruous upshot … 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.” The Court also “reject[ed] the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a [federal] schedule,” as not “faithful to the text,” which requires that the statue of conviction relate to federally controlled substances.
Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.