Last week, I blogged on Mellouli v. Holder.  After a “tip” (i.e. someone e-mailed a Washington Post article to me), the case got a lot more interesting.  The case is about a sock.

Of course, the sock in question was holding four tablets of Adderall–a Schedule II drug under federal law.  (Although there was apparently no lab testing of the substance in the sock nor did it appear to have been specifically listed in the charging documents.)  

At oral argument, Mellouli’s attorney argued that the Board of Immigration Appeals decision would remove the required analysis and simply make any drug offense deportable without the required analysis from prior cases.  He told the Court, “[t]hat methodology has led to tens of thousands of drug deportations each year, but not for someone convicted of possessing a sock.”  He later added, “. . . the approach that we are advocating here[] that has been used for many years, is not something that brings a halt to drug deportations.  Drug deportations have been happening all along in ­­ under ­­ under the approach that we suggest.”

During an exchange with Justice Ginsburg, Mellouli’s attorney noted that the substance itself was not part of the charged offense.  The Justices also questioned what the “relating to” language in the Immigration Act statute.   A significant amount of discussion went into exciting grammar discussions, but the Justices seemed to acknowledge the statutory language did not make clear exactly what “relating to” meant.

In his exchange with Justice Alito and Justice Kagan, he noted:

JUSTICE ALITO: [For example, an alien burglarizes a home to steal drugs.] The law doesn’t relate to a controlled substance, but the conduct does relate to a controlled substance.

MR. LARAMORE: Right. And the deportability rises and falls on what the person is convicted of.

The point, according to Mr. Laramore, is that it is the law under which an alien is convicted that must “relate to” a federal drug law. Mr. Laramore continued his argument that Mellouli is not deportable because the Kansas law is broader than federal law:

JUSTICE GINSBURG: So you don’t get any help by what seems to be the case, that this sock would not count as drug paraphernalia if we were ­­ if we were dealing with a Federal prosecution.

MR. LARAMORE: You are absolutely right that it would not. Possession of paraphernalia is not a  Federal offense. One cannot be prosecuted Federally for possessing drug paraphernalia.

JUSTICE GINSBURG: But the question I wanted to ask – –

MR. LARAMORE: But that —

JUSTICE GINSBURG: — is  a sock considered drug paraphernalia under federal law?

MR. LARAMORE: It would not, be because the Federal statute says that ­­ I don’t have the language in my head, but the concept is that to be paraphernalia it ­­its usual purpose has to be to facilitate drug sales or drug use or one of those things that paraphernalia does. And the Kansas is broader than that. It’s really any object that can be used to store or facilitate storage of a controlled substance.

During the Government’s argument, the Justices returned to the sock and whether that qualifies to deport someone.  The Government’s attorney, responded to Justice Ginburg, stating, “Your Honor, I agree that I  think a strange feature of this case is that it involves an item that’s not usually thought of as drug paraphernalia.”

However, Justice Sotomayor responded Ms. Kovner, the Government’s attorney, seemed to be arguing that possessing the sock and a nonillict drug would subject an alien to deportation.

Justice Alito then focused the argument a bit on what seems a critical component.  The following exchange is a bit lengthy, but it does end with laughter following Justice Kagan’s observation:

JUSTICE ALITO: Do we ­­ do we even know that this is a ­­ a proper conviction under Kansas law, that the Kansas statute actually means what it’s been interpreted here to mean? The Petitioner pled guilty to this, I think, because he got a break, because he could have been charged with something — if, in fact, he had Adderall, which is a Federally controlled substance ­­he could have been charged with something more serious. So he pled to this misdemeanor. But it’s really hard to believe that the Kansas statute actually regards as drug paraphernalia anything that is used at any time to contain a controlled substance. 

Suppose somebody buys marijuana or some other drug and it’s in a plastic bag. So the plastic bag is — that’s one violation. The person puts it in a pocket; that’s another violation. The pocket is — is drug paraphernalia. Takes it out of the pocket and puts it in the glove compartment of a car; that’s a third violation. The car is equipment that’s used to store it. Takes it out of that, puts it in something ­­ it — ­­it — can’t really mean this, but we don’t have State court interpretations.

MS. KOVNER: That’s right. And if I could  just make two brief points about that. You’re right that this was a result of a plea, and as a result, we don’t know exactly what Kansas courts would say about this application, which is a very unusual application. But I think that illustrates, Justice Alito, I think, the bad consequences of Petitioner’s view, which is, for Petitioner, even if it was cocaine that was stored in the sock, if he pleads guilty to the paraphernalia offense, the BIA will lack any ability to take enforcement action against him, because he’s convicted of a paraphernalia crime, and the nature of the substance doesn’t —

JUSTICE KAGAN: If he had cocaine in his sock, he would probably be convicted of possession of cocaine.

MS. KOVNER: But —

JUSTICE KAGAN: He was convicted of  paraphernalia here because he had four pills of Adderall, which if you go to half the colleges in America, people ­­ you know, and just randomly pick somebody, there would be a decent chance.

 (Laughter.)

Ms. Kovner responded that Congress did not intend a plea deal agreed to by a local prosecutor to prohibit the Board of Immigration Appeal’s ability to take action against an alien for a crime involving a controlled substance.  Chief Justice Roberts wondered, however, why, if the prosecutor did not think the crime was serious enough to prosecute for possession, should the crime be considered as the basis for deportation.  Ms. Kovner argued that it was unreasonable look at what the prosecutor had done, but Justice Sotomayor noted that for years the BIA had required the drug to be identified in possession and distribution crimes.

For now, we’ll have to wait and see what happens with the case of the sock.