This week’s Supreme Court decision Mellouli v. Lynch has received a lot of media attention, likely because the premise- possession of sock as a deportable drug offense- sounds ridiculous at first. Because the Supreme Court overturned Mr. Mellouli’s removal order, many stories have reported that a sock (or presumably any other innocuous item) will no longer lead to removal. Headlines on the case include, “Your Socks Can No Longer Get You Deported” (Slate.com), “U.S. top court sides with immigrant deported for drugs in sock” (Reuters), and “SCOTUS rules sock not drug paraphernalia, not deportable offense” (MSNBC).
Despite the reports, however, the Supreme Court did not say that a sock cannot lead to removal. Rather, it is a very complicated decision in which the Court held that drug paraphernalia convictions must be analyzed like other controlled substances offenses. As a result, socks can still lead to removal if they are part of a drug paraphernalia conviction.
Socks can be drug paraphernalia- when they are carrying drugs.
Socks are not traditionally considered drug paraphernalia, but they are also not usually used to carry Adderall pills. According to the decision, police found Adderall in Mr. Mellouli’s socks after he was arrested for driving under the influence and without a license. Though initially charged with trafficking contraband in jail, Mr. Mellouli was convicted under Kansas state law for possession of drug paraphernalia, specifically the sock.
Notably, Mellouli never challenged the idea that a sock could be drug paraphernalia. While there are serious concerns that United States drug policy leads to ridiculous or overly harsh convictions, Mr. Mellouli’s plea may have been reasonable under the circumstances. Drug paraphernalia charges are generally considered less serious than other drug offenses, like possession or trafficking.
Regardless of one’s opinions on drug laws generally, controlled substances charges are especially dangerous and complicated for non-citizens. For immigration, convictions “relating to controlled substances” can carry very harsh consequences, including removal.
Drug convictions may not be deportable offenses if the record does not identify the drugs involved.
While Mr. Mellouli apparently acknowledged that the sock contained Adderall, the conviction record did not identify a specific controlled substance related to the paraphernalia. This fact is very important, but the reason why takes some explanation.
While a conviction “relating to a controlled substance” is a deportable offense, one key qualification is that the “controlled substance” must be illegal under federal law. This is vital because many states criminalize drugs which are not illegal under federal law. Therefore, a state drug conviction is not necessarily a deportable offense.
It is also important that the government must demonstrate that a conviction relates to a federally controlled substance. If the government cannot establish that a state drug conviction relates to a federally controlled substance, it is not a ground of deportability.
Another key consideration is that when determining whether a state conviction is based on a federally controlled substance, immigration judges review only the criminal statute and conviction documents. They cannot review the conduct that led to the conviction. (Note: This concept, known as the “categorical approach,” is very complicated, with key exceptions and qualifications not discussed here. It is presented in a simplified form here for the sake of clarity.)
Combining these factors, immigration law has long held that a state drug conviction is “relating to a controlled substance” only when the conviction documents identify a federally controlled substance, regardless of the circumstances leading to the conviction. This is very important because state drug conviction records often do not actually list the controlled substance.
Therefore, someone arrested with Adderall in a state which criminalizes substances not listed on the federal schedules may be able to avoid deportation by pleading guilty to drug possession without identifying the drug.
While the requirement that a drug conviction list a federally controlled substance to be a deportable offense is longstanding, some immigration experts were concerned that the Supreme Court might upend this principle. Mellouli, however, confirms that this requirement remains good law, which may be the most important part of the decision.
Drug paraphernalia charges are treated like other controlled substances offenses.
Despite the reasoning described above, the government and lower court held that paraphernalia offenses are different from other drug crimes, and necessarily “relate to” controlled substances, even if they do not identify a substance. As a result, while Mr. Mellouli could have avoided deportation with a drug possession conviction which omitted the controlled substance, he was deportable with a supposedly lesser drug paraphernalia conviction concerning an unidentified drug.
The Supreme Court, however, overturned the distinct treatment of paraphernalia and other controlled substances offenses, finding it made “scant sense.” The Court determined that state drug paraphernalia charges are to be treated comparably to other state drug offenses for immigration purposes. This holding applies not only to Mr. Mellouli, but to other state drug paraphernalia convictions across the country.
This does not mean, however, that an Adderall-filled sock will not lead to deportation. Again, a drug possession conviction that the criminal record establishes is based on Adderall would be one related to controlled substances. Similarly, a drug paraphernalia conviction referencing Adderall may well be considered “relating to a controlled substance,” regardless of the type of paraphernalia.
It is important to note, however, that analyzing the immigration consequences of criminal convictions is very complicated, with many issues beyond the scope of this article. For example, even determining whether a state criminalizes controlled substances that are not illegal under federal law can be very difficult. Therefore, any non-citizen facing drug charges needs individual advice by an immigration attorney, and cannot rely on this article.
Bean, Lloyd, Mukherji, & Taylor is an immigration law office in Oakland, California emphasizing family-based immigration, citizenship, removal defense and deferred action.