Maybe you can stay now.

Photographer: John Moore/Getty Images

Deportation Just Became Less Likely

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.”
Read More.
a | A

Talk of President Barack Obama’s immigration initiative has slowed now that the program is stalled in court, and may not be implemented until the end of his term, if at all. But this week, the Supreme Court decided an immigration case, Mellouli v. Lynch, that has meaningful implications for potential deportees convicted of crimes. The case made few headlines, because its consequences weren’t obvious to nonspecialists. Nevertheless, on close reading, the case matters -- and it raises important questions about how the U.S. decides whom to deport.

If you heard of the Mellouli case, it was probably because of the strange facts. Moones Mellouli, a Tunisian-born lawful permanent resident, was on the surface a model immigrant who graduated magna cum laude from a U.S. college, earned master’s degrees in mathematics and economics, and taught mathematics classes at the University of Missouri.

QuickTake Immigration Reform

In 2010, he pleaded guilty to a Kansas charge of misdemeanor possession of drug paraphernalia: a sock that contained four tabs of the anti-ADHD medication Adderall. On the strength of the conviction, the Department of Homeland Security sought and obtained his deportation on the ground that he had violated a state law “relating to a controlled substance” as defined by federal statute.

Mellouli’s misdemeanor conviction never mentioned the Adderall. It only specified that he had used the sock to contain a controlled substance.

The Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, reversed the deportation order, and Mellouli, who is engaged to a U.S. citizen, should now be allowed to return. But what’s important about the case is how Ginsburg framed her opinion.

She began by affirming a point the court made in a case two years ago: that the way to apply the federal deportation statute when an immigrant has been convicted under state law is not to look at the details of the act that led to conviction, but rather at the category into which the conviction falls. The courts, she said, should look to “the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior.” Thus, the deportation decision must “presume that the conviction rested upon nothing more than the least of the acts criminalized” under the state statute.

What that means is that the immigration courts won’t engage in a second “mini-trial” of the already-convicted defendant to determine whether his or her acts satisfy the federal deportation law. Rather, the immigration courts will look only at the piece of paper that describes the category of the conviction.

In practice, Ginsburg explained, this categorical approach “enables aliens to anticipate the immigration consequences of guilty pleas in criminal court.” Knowing what category their offenses falls into will allow immigrants to choose what charges to accept while plea bargaining -- namely, those that won’t get them deported. Mellouli, in contrast, probably didn’t know that his guilty plea would trigger deportation.

In Mellouli’s case, Ginsburg concluded, the court should only look at the fact that Mellouli was convicted for possessing drug paraphernalia. Luckily for Mellouli, the Kansas law under which he was convicted prohibited possession of paraphernalia for some drugs that aren’t criminal under federal law. In theory, then, Mellouli could’ve been convicted of the same charge in connection with drugs that aren’t in the federal list of controlled substances, as required by the federal deportation statute.

By adopting the categorical approach, the court reduced the likelihood that immigrants convicted of drug offenses would be deportable. The vast majority of controlled substances on state lists are the same as those on the federal list. But the court’s approach makes it very likely that a conviction for a state drug crime won’t get you deported, provided there is some difference between the lists.

There were plenty of other ways the court could have resolved the case -- including by addressing the basic question of whether a drug paraphernalia conviction relates to a federal controlled substance even if the state’s list of controlled substances differs somewhat from the federal government’s list. In dissent, Justice Clarence Thomas, joined by Justice Samuel Alito, said that the state conviction still related to a federal controlled substance despite a 3 percent difference between federal and state lists. For Thomas, “related” doesn’t mean “precisely applying to” but something more, well, relative.

Did the court get it right? That depends on whether you think it’s a good or bad thing to deport immigrants who are convicted of drug offenses. In the case of the sock and the model immigrant, it’s easy to side with Ginsburg and the court and say that we should bend over backward not to deport unless we really, really must. If, however, if you think that drug convictions are indicators of broader criminality, and that we should deport criminals, you might think the court’s approach is wrong.

There are two escape-hatch solutions: for states to adopt controlled-substances lists that are the same as the federal list, or for Congress to change the law so that all state drug convictions merit deportation, not only those relating to federally controlled substances. If neither of those happens, the court’s decision will remain on the books as a win for immigration advocates.

  1. For law geeks only: The Board of Immigration Appeals had adopted a rule under which all state drug paraphernalia convictions counted as “relating to” federal controlled substances. Ordinarily, the courts give special deference to a federal agency’s reasonable interpretation of a law that falls within the agency’s ambit. But Ginsburg said that this interpretation wasn’t entitled to what’s called Chevron deference. Her reasoning was that the rule, which was limited to drug paraphernalia convictions, produced an anomalous result. Someone could be deported for possession of paraphernalia connected to a drug not banned by the federal government. But an immigrant couldn’t be deported for being convicted of a state drug offense when the drug wasn’t federally controlled. Ginsburg said that this result “makes scant sense” and so fell outside the norm of deference.

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