Mellouli v. Holder

On January 14, 2015, the Supreme Court will hear arguments in an immigration case, Mellouli v. Holder (No. 13-1034).  Mellouli will require the Supreme Court Justices to determine whether a Tunisian Immigrant convicted of possessing drug paraphernalia can be removed from the United States (deported) under Section 237(a) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(B)(i)). 

Much of the argument looks like it will focus on two words in Section 237(a)–“relating to:”

 Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

The petitioner, a Tunisian citizen, was convicted violating a drug law in the State of Kansas, in particular a law relating to drug paraphernalia–and not possession or distribution of the drugs themselves. The Board of Immigration Appeals held that petitioner’s “conviction for drug paraphernalia involve[d] drug trade in general, and, thus, is covered under [8 U.S.C. § 1227(a)(2)(B)(i)].”

The case was appealed to the Eighth Circuit Court of Appeals.  The Eighth Circuit observed that the federal government had an extensive role in developing and urging states to adopt the Model Drug Paraphernalia Act.  The court concluded that there was “nearly a complete overlap” between the definition of a controlled substance in 21 U.S.C. § 802 and in statutes of States such as Kansas that adopted the Uniform Controlled Substances Act.”  As such, the Eighth Circuit held the BIA‘s decision was “reasonable,” and noted that it “join[ed its] sister circuits” in holding the “relates to” provision in 8 U.S.C. § 1227 was correctly interpreted by the BIA as it applies to drug paraphernalia.  (It is worth mentioning that interpretations of Immigration and executive agency decisions receive a specific type of review by a court, and Immigration has specific requirements about proof and review.)

The Supreme Court has been asked to review whether the Government must prove the connection between a drug paraphernalia conviction and a substance listed in Section 802 of the Controlled Substances Act in order to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i) (Section 237(a) of the Immigration and Nationality Act).

And, while I think it will be unlikely to affect the Supreme Court’s thinking in this case, I wondered today, after watching the Seahawks beat the Panthers and the Broncos lose to the Colts, whether the legalization of marijuana in Washington and Colorado (and similar discussions in Minnesota and around the country) whether the legalization of marijuana will play a role in legislation and court decisions in the future.