Friday, January 16, 2015

Deportation over a sock? Really?

Under section 237 of INA (Immigration and Nationality Act)  non US citizen could be deported from the US for any drug related offense. The only exception is 30 grams of marihuana possession for personal use.
Every year about 30,000 non-citizens are deported from the US for drug-related crimes. Is it good? Do we need drug addicts in the US?
Let's imagine you are flying to Europe for a week of vacation or three-day business trip. You are complaining to your friend about difficulty to sleep on a plane but you are not in a position to fly first class. You friend offers you a solution. Last time when he was in similar situation his doctor prescribed him ambien, so he could switch to a different time zone and function without a problem. He offers you four pills that he still has left.  You appreciate his help, put the pills in your glove and get ready for the trip.
Before you had a chance to go to Europe you get stopped for driving 45mph in 35 mph zone. Oops. Your gloves are on the front seat and one pill rolls out of a glove and a cop sees it in a plainer view.
Next thing you know you are arrested and charged with drug possession (ambien -4 pills) and drug paraphernalia (your glove).
You go to local municipal court, a prosecutor agrees to drop possession count, you agree to plea to drug paraphernalia (the glove) - misdemeanor, $50 fine, no jail, 3 months probation. Not a big deal!!
Now, what if you are French citizen and only have permanent resident status in the US? Under today's law you will be deported to France. Moreover, before the deportation proceedings are over, you will stay in jail because any drug-related respondent in immigration court has to be subject to mandatory detention. Sweet, isn't it.
This exactly the case that was in front  of the Supreme Court in Mellouli v. Holder .
Moones Mellouli is a Tunisian citizen, and lawful permanent resident of the United States. In April 2010 he was arrested for driving under the influence of alcohol, and while in detention, four Adderall pills were found in his sock, and he was charged with drug possession. Subsequently, he pleaded  guilty to the lesser offense of misdemeanor possession of drug paraphernalia, on July 13, 2010.  
Immigration judge ordered that Mr. Mellouli  to be deported. His attorney appeal the decision of the 
immigration judge.  
There is a discrepancy between a list of control substances under federal law and under state law. So, Mellouli argued that adderall is not a control substance under federal law. Also, he pointed out that Adderall was not mentioned in the plea agreement. Mr. Mellouli . Today, the Supreme Court granted cert to determine "whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act," reports SCOTUSblog.

Assistant Solicitor General Rachel P. Kovner said during the arguments : “He wasn’t exactly convicted of having a sock. He was convicted of using an innocent item as a tool for the storage of drugs, and that’s true of every drug paraphernalia conviction.” This is true. 

Assistant Solicitor General Rachel P. Kovner said Congress intended for immigration officials to have discretion so they could remove individuals who have cocaine in the sock. 
“If he had cocaine in his sock, he would probably be convicted of possession of cocaine.”
So, we hope that we will have good decision to avoid senseless results and unnecessary expenditures for prosecuting minor offenses. 
The case is Mellouli v. Holder.

The Supreme Court judges were rather amused to hear that a sock was considered drug-paraphernalia. 

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