Tuesday, January 27, 2015

Sock it to Him?

The Supreme Court recently heard oral argument in a case about deportation and a sock.
Under federal law, a non-citizen may be deported for violating a “law…relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. 1227(a)(2)(B)(i). In 2010, Moones Mellouli was arrested by Kansas authorities for DUI and driving on a suspended license. When Mellouli was searched after his arrest, police discovered four Adderall pills in one of his socks. He ultimately pleaded guilty to DUI and possessing drug paraphernalia (a misdemeanor). Under Kansas law, “paraphernalia” is something that can be used to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.” After his plea, Mellouli was deported under Section 1227.
Mellouli argued that he should not have been deported because Section 1227 only allows for deportation when the state conviction “relates” to a substance controlled under federal law, section 802 of Title 21. He claimed that his misdemeanor conviction failed to specify the particular controlled substance at issue, and because the Kansas statute under which he pleaded guilty lists certain substances not included in section 802 of Title 21, the government could not prove his conviction related to a “controlled substance” as that term is defined in section 802.
The government argued that “relating to” is sufficiently clear (and broader than a term such as “involving”) and it acted within its authority in deporting Mellouli after his plea to possessing drug paraphernalia. But Justice Scalia questioned this textual argument, wondering whether the sock, if “related” at all, was more than “tenuously related” to the controlled substance. And several justices expressed concern that Mellouli could be deported for possessing something (the sock) that would not have supported a conviction for possessing drug paraphernalia under federal law.

While not relevant to the textual issue, the justices asked other interesting questions during oral argument. Several justices, while admitting that the Kansas definition of “paraphernalia” is broad, questioned the propriety of defining “paraphernalia” to include a sock. As Justice Alito noted during oral argument, items that the average person would not think of as drug paraphernalia—for example, a bag, a pocket, or a glove compartment—could be considered “paraphernalia” if used to store drugs. The justices also seemed concerned that a legal resident could be deported for a minor drug offense, with Justice Kagan noting that Mellouli was convicted for conduct routinely committed by students on “half the colleges in America.”
I think Mellouli has the stronger argument here. Even if Mellouli’s possession of the sock was “related” to a controlled substance, I agree that under the plain language of the statute, the controlled substance must be one defined as such under Section 802. If the substance isn’t a “controlled substance” under federal law (even if it is under state law) or if the record doesn’t show that the substance at issue was one outlined in Section 802, I don’t believe a non-resident can lawfully be deported under Section 1227.

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