S.C. Mellouli v. Holder Oral Argument Recap - Dean Kevin R. Johnson

"[On Jan. 14, 2015] the Supreme Court heard oral argument in Mellouli v. Holder, a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide drugs.  The record of his conviction, the touchstone in removal proceedings, did not specify the controlled substance connected to Mellouli’s “drug paraphernalia.” ... As the Affordable Care Act’s oral arguments taught us, it is at best hazardous to speculate from the oral arguments about the outcome of a case.  Nonetheless, the Justices’ questioning focused on the meaning and application of the statutory language in question (with little mention of Chevron deference).  A majority of the Justices seemed to agree that, because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument.  As discussed in the argument preview, the Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses.  This case falls into that category.  Indeed, Justice Kagan generated laughter from the audience with her quip that, if Mellouli had been convicted of possessing drug paraphernalia for hiding a few tablets of Adderall, students on “half the colleges in America . . . just randomly pick[ed]” could be as well. Several of the Justices seemed troubled about the possibility that Mellouli’s removal – and separation from his fiancé – was based on a misdemeanor conviction for possession of a sock.  Consequently, one might predict that a majority of the Court will side with Mellouli." - Kevin Johnson, Jan. 15, 2015.

Kevin R. Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies at UC Davis School of Law.