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How a Sock Could Lead to Deportation

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Moones Mellouli is getting his day before the U.S. Supreme Court -- and the issue, believe it or not, is a sock. Specifically, the sock in which Mellouli was holding four tabs of Adderall after he was arrested and accused of driving under the influence. Mellouli, a Tunisia native who had become a permanent U.S. resident, pleaded guilty to misdemeanor possession of drug paraphernalia: not a bong or a works but a sock. Then the Department of Homeland Security went to court to get him deported.

You read that right. President Barack Obama has recently taken decisive and controversial executive action that significantly limits deportations of undocumented people, but that model of permissive immigration policy apparently doesn't extend to the field agents who make decisions to pursue deportation.

According to the Immigration and Nationality Act, Mellouli can be deemed deportable if he was “convicted of a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance.” The Kansas drug paraphernalia law is modeled on the federal law that criminalizes drug paraphernalia. On its face, it relates to controlled substances. It might seem absurd that a sock could get you deported. But according to the letter of the law, it would seem, Mellouli could be made subject to deportation.

Mellouli’s lawyer didn't have much to go on, but nevertheless came up with a clever argument. Mellouli’s Kansas conviction didn't specifically mention the Adderall in the sock. It's just that he was guilty of possessing drug paraphernalia. Mellouli argued to the Board of Immigration Appeals that he couldn't be deported for being convicted of a crime “relating to a controlled substance” unless the controlled substance was specified in the conviction.

To support the argument, he pointed out that Kansas does in fact prohibit certain substances that the federal government allows, such as jimson weed. (I had to Google that -- apparently it gives you spiritual hallucinations.) In theory, then, Mellouli could have been convicted of possessing drug paraphernalia in Kansas without committing a crime connected to a federal controlled substance. He could, for example, have been carrying jimson weed in his sock en route to an American Indian ritual.

The Board of Immigration Appeals wasn't buying it, and neither was the U.S. Court of Appeals for the 8th Circuit. You can see why. Even though the conviction didn't mention the Adderall specifically, the government had in fact included in the record the original Kansas complaint against Mellouli, which did. But the core of the appellate court's opinion was that it wasn't necessary for the criminal charge to include the specific controlled substance in question. It was enough that the conviction was one for possession of drug paraphernalia to prove that it was related to a controlled substance.

So why did the Supreme Court take this case? The simple reason is that the 8th Circuit decision arguably conflicted with decisions by the 3rd and 7th Circuits, which do require that the conviction include reference to the specific controlled substance. The Supreme Court sees itself as having the responsibility to resolve splits between the circuits -- no matter how small the issue.

But there's a larger issue in Mellouli’s case now that the Obama administration has changed the political landscape on deportation. The position of the 3rd and 7th Circuits, on which Mellouli relies, isn’t just a technical piece of statutory interpretation. It's part of a broader effort to require the government to cross every t and dot every i before deporting somebody. I wouldn't call it a strategy of nullifying the federal law; I would say that it reflects an approach of using the law against itself.

The implicit logic runs something like this: If the law is so unforgiving that an immigrant can be deported for a drug-holding sock, then the law should be equally unforgiving when it comes to the technical hurdles that the government must jump before effectuating deportation.

The best example I can think of comes from Shakespeare's “Merchant of Venice.” Shylock insists on the letter of the bond, which entitles him to a pound of flesh. In response, Portia, acting as a lawyer for Antonio, one-ups Shylock by arguing that although Shylock may be entitled to a pound of flesh he is not entitled to take any blood, because it isn't mentioned in the debt instrument. The law is turned against itself.

The outcome will be an interesting test of how the Supreme Court is thinking about immigration as well as statutory interpretation. If the justices want to be very technical, there’s room for them to let Mellouli stay. They would be acting in the best traditions of legal technicality deployed for mercy. Don't count on it.

  1. Portia has another trick up her sleeve: having used the law to achieve mercy, she then charges Shylock with violating the law that prohibits an attempt on the life of a Venetian citizen. Rather than accept deportation and dispossession, Shylock is compelled to become a Christian  -- which Shakespeare seems to consider a happy ending. Portia’s second judgment works against the alien, while the judgment of the 3rd and 7th Circuits works in the alien's favor.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net