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Can Possession of a Sock Be a Deportable Offense?

The Supreme Court of the United States granted certiorari to two immigration cases for the 2015 term that stand to have a considerable impact on American immigration law and procedure.

On January 14, 2015, the Court heard oral argument in the first of those cases and the question before the justices was whether a sock-yes a sock!-can be considered drug paraphernalia.

The case, Mellouli v. Holder, No. 13-1034, presents a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia who had resided in the United States for 8 years and was engaged to a U.S. citizen. Mr. Mellouli was ordered removed after pleading guilty to a misdemeanor for possession of drug paraphernalia. The "paraphernalia" that formed the basis for the order of removal was Mr. Mellouli's sock which allegedly contained four tablets of Adderall (a medication used to treat hyperactivity).

The statute at issue in the case is Section 237(a)(2)(B)(1) of the Immigration and Nationality Act, which provides for the removal of "any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in [the Controlled Substances Act])." The key here is the phrase "relating to." To trigger deportability under the Immigration and Nationality Act, must the government prove the connection between a drug paraphernalia conviction and a substance listed in the Controlled Substances Act?

Oral arguments before the Supreme Court focused on whether the government could remove Mr. Mellouli without proving that his conviction related to a federally controlled substance. Mr. Mellouli argued that, to deport him based on his sock-related conviction, the government should be required to prove that Mr. Mellouli's state conviction must relate to a substance controlled under federal law in the Controlled Substances Act. The government countered by arguing that the "relating to" language in the statute was sufficiently clear to justify removal on a drug paraphernalia conviction.

Though the Supreme Court has not yet issued its opinion in the case, the questions posed by the Court seem to suggest it will side with Mr. Mellouli. Hinting at the absurdity of the conviction in the case, Justice Kagan triggered laughter from the audience when she remarked:

"he had four pills of Adderall, which if you go to half the colleges in America . . . and just randomly pick somebody," you'd find Adderall.

Similarly, Justice Alito focused on the triviality of the sock:

"It's really hard to believe that the Kansas statute actually regards as drug paraphernalia any thingthat 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 . . . one violation. The person puts it in a pocket; that's another violation. The pocket is . . . drug paraphernalia. Takes it out of the pocket and puts it in the glove compartment of a car; that's a third violation."

Though the facts of this case may seem humorous or trivial, Mellouli is an important case that will set significant precedent as the Supreme Court clarifies the reach of the nation's drug-related immigration provisions.

In my opinion, the Court should rule that, in order to impose deportation's devastating effects on an individual for a past conviction, the conviction must indeed meet each of the elements set forth by Congress in the statute. The Court should require that the government prove, in removal cases predicated upon possession of drug paraphernalia convictions, that the underlying conviction reflect a connection to a controlled substance regulated by federal law.

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