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"Moones Mellouli, a Tunisian who had been living legally in the United States until he was deported for a minor drug crime, won one appeal to the Supreme Court this past June and on Friday moved into position potentially to win another. The Justices, in a brief order, put off any further government review of his status under immigration law, saving that question for itself at least until a new appeal is decided.
As the case of Mellouli v. Lynch returned to the Court, it was partly about what the Court meant in its June 1 ruling in his favor, and whether a federal appeals court wrongly failed to follow that decision. But the case is also about immigration officials’ authority to pursue a possible new avenue to deportation after the Supreme Court scuttled the first try and barred deportation.
When the Justices overturned Mellouli’s deportation, they did so because his guilty plea for hiding a drug illegally in a sock was based upon a Kansas law that did not fit closely enough with a federal drug law that the government had argued made convictions like his a basis for deportation. The Justices’ seven-to-two decision nullified a ruling by the U.S. Court of Appeals for the Eighth Circuit, but it did not specify what would happen next.
Mellouli’s lawyers thought the case for excluding him was completely at an end, so he could come back to the U.S. without fear of violating another law — a law against illegal re-entry. The case did not end, however, because the Eighth Circuit sent it back to the federal Board of Immigration Appeals to weigh what the court of appeals earlier had called an “interesting and potentially difficult question” about what kind of evidence in a drug case could be used to support an order to deport.
In the Eighth Circuit ruling that the Supreme Court had overturned, the appeals court did not attempt to answer that question itself. The question, in short, was whether the government in seeking to deport an individual for a drug crime had to first prove that the crime at issue did violate federal drug law, and, once that was decided, then turn to whether immigration officials could look at evidence outside the original case in search of another reason to deport.
In Mellouli’s case, the Supreme Court had said he could not be sent out of the U.S. solely because of his conviction for hiding a drug in his sock, because the evidence in the case at that point did not specify whether the drug hidden in the sock was banned by federal law. Once it was clear that the Kansas law he admitted breaking and the federal law were not the same on that point, the Court said, courts should not evaluate evidence outside that record and consider other facts that might possibly support removal.
The question that the Eighth Circuit had declined to answer itself is the one that it referred to the immigration appeals panel, to weigh first. Having previously left that issue “for another day,” the Eighth Circuit, after getting the case back from the Supreme Court, said that day had arrived — at least for the immigration board.
The case did go back to the immigration board, but the Justice Department then stepped in and asked that the case be dismissed. It had no intention to try to deport Mellouli on the alternative theory that the hidden drug had later been identified as one that is explicitly banned by federal law, the government told the immigration board. But the government lawyers only asked that the case be dismissed “without prejudice” — that is, not in a final form preventing its potential reopening.
To Mellouli’s lawyers, that result would not lift the legal cloud over his status, because he had no way of knowing whether the government would ever reopen a case for his deportation. The only way for him to seal the victory he had won in the Supreme Court, his lawyers then told the Justices in a new filing, is to have the immigration board case closed down altogether, ending any legal risk to him. The Eighth Circuit had not sealed his victory, as it should have, his lawyers complained, and thus deviated from what the Justices had settled.
The Justice Department objected to that new challenge before the Justices, repeating the assurance that officials did not intend to try to deport the Tunisian. Apparently, however, that was not a sufficiently strong promise for the Justices. On Friday, without any noted dissenting votes, the Court ordered the immigration appeals board to do nothing further until at least Mellouli had had a chance to file his new appeal claiming that he should face no further risk.
This did not guarantee that the Court would actually agree to hear that new appeal; the order said only that the government could take no action against him until “further order of this Court” after Mellouli formally files his second appeal. That took the matter out of the hands — at least for the time being — of the immigration appeals board, the Eighth Circuit, and the Justice Department.
Final action on this new dispute is not expected until the Court goes into a new Term, beginning in October." - Lyle Denniston, Aug. 23, 2015.