Supreme Court Sets a High Bar for Drug-related Immigrant Deportations

Imagine this scenario: You’re a 19 year old college student and resident of the Denver Metro area. Your family immigrated to the U.S. several years ago, and while you are a lawful permanent resident of the U.S., you are not yet a citizen of this country.

One Friday night at a house party some friends are having, you mistakenly “try something” a friend offers you, which you realize later may have been an illegal drug. The party is broken up by the police, and you are arrested by the police for possession of an unspecified drug.

You are aware that there are possible immigration consequences to certain drug-related crimes. What do you do in this case?

The answer, if you’re a resident of Denver or elsewhere in Colorado is to call an immigration lawyer either immediately, or after getting a referral from the criminal lawyer you’ll need too. If you do this, the good news is that yesterday, the U.S. Supreme Court may have given you and your lawyers the tools they need to save you from possible deportation or removal from the U.S.

In the case of Mellouli v. Lynch, the Supreme Court, in a 7 – 2 opinion written by Justice Ginsburg, the Court held that the petitioner’s Kansas conviction for drug paraphernalia possession – which nowhere specified which type of drug was involved in the crime – was not sufficient to trigger removal under INA sec. 237(a)(2)(B)(I) as “relating to a controlled substance.”

So what does this mean? Well, section 237(a) of the Immigration and Nationality Act gives several different reasons why a person who has been admitted to the U.S., but who is not a citizen of the U.S., could be “removed” or “deported” from the country. Among these reasons are for certain convictions related to controlled substances. In this particular case though, Mr. Mellouli pled guilty to a state drug paraphernalia possession charge, and neither his plea agreement, record of conviction, charging document, or any other comparable judicial record of the factual basis for his plea mentioned anything about the drugs which were in his possession.

The reason this was such a big deal was that in Kansas, there are several classes of “controlled substances” which are not also considered controlled substances under federal law. Since no one could do anything more than guess which drug may have been involved, and since federal immigration law requires that a state law drug conviction must relate to a drug that is controlled federal law, he was not properly deportable.

While leaving out a more complicated discussion of things like the “categorical approach” and “modified categorical approach”, I’ll just say that this case could be crucial for you if you if you are an immigrant facing drug-related charges. After all, the Court pointed out that immigrants should be able to “anticipate the immigration consequences of guilty pleas in criminal court” and work to obtain the best deal possible in light of their immigration situation.

But if you need to take advantage of the Court’s decision in Mellouli, the key for Coloradans reading this post is to find a good Denver immigration attorney who will work with your criminal lawyer to best protect your rights to remain in the U.S.

Andrew Trexler is an Immigration lawyer licensed in Colorado and practicing in the Denver area since 2007.