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The Supreme Court Takes the BIA to Task

Yesterday, in an opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court brought a measure of hope to non-citizens facing deportation on the basis of certain minor criminal convictions. In Mellouli v. Lynch, the Court ruled that Moones Mellouli, a lawful permanent resident, could not be removed from the United States on the basis of his Kansas conviction for concealing unnamed pills in his sock.

The Court’s decision took the Board of Immigration Appeals (“BIA”) to task for routinely applying inconsistent standards in its decision-making. Under federal law, an individual is subject to removal from the United States on the basis of a state “drug-related” conviction if the controlled substance at issue appears on the federal government’s list of controlled substances. If the controlled substance is on the state list, but not on the federal list, the conviction does not render the individual removable from the U.S.

The BIA applied this standard to drug possession and distribution offenses, but with regard to drug paraphernalia-related offenses, the BIA applied a different standard, subjecting a far greater number of non-citizens to deportation. The BIA’s position was that state drug paraphernalia statutes relate to “the drug trade in general” and therefore relate to any and all controlled substances, whether federally listed or not. In Mr. Mellouli’s case, no controlled substance even figured as an element of the offense of which he was convicted. Yet the BIA ordered him to be deported and the 8th Circuit Court of Appeals denied Mellouli’s petition for review.

The anomalous result of the BIA’s inconsistent interpretations was that a non-citizen who was convicted of possessing a controlled substance not on the federal list would not face removal from the country, but a non-citizen convicted of using a sock to hold the very same substance, would indeed be removed from the country.

Countering the usual deference federal courts give to administrative agency legal interpretations, the Supreme Court properly took the BIA to task for its inconsistent, overbroad and careless reasoning. In so doing, the Court has articulated to those bearing responsibility for removing non-citizens from their homes and families in the United States, that they must exercise restraint and discipline in reaching their decisions.

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