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  • Article: U.S. Supreme Court Takes Two Immigration Cases in New Term By Mark Noferi

    Article: U.S. Supreme Court Takes Two Immigration Cases in New Term



    The U.S. Supreme Court opened its October term this week by announcing the cases it would hear over the course of the next year. Although the Court has taken no blockbuster immigration case like 2012’s Arizona v. United States, interpreting state authority to enforce federal immigration laws, the Supreme Court justices will hear two cases with significant implications for U.S. immigration law.

    The first, Mellouli v. Holder, will answer the question of whether a noncitizen—even a green card holder—can be mandatorily detained and deported for possessing drug paraphernalia, even absent proof that the paraphernalia is related to a controlled substance. The defendant, Moones Mellouli— a lawful permanent resident who earned two master’s degrees and worked as an actuary—was arrested while driving in Kansas. After the arrest, he was caught in jail with four tablets of Adderall, a controlled substance, in his sock. In 2010, he pled down to misdemeanor “possession of drug paraphernalia,” a charge that did not make reference to a controlled substance. In 2012, however, ICE arrested Mellouli and sought to deport him for violating a state law “relating to a controlled substance.”

    Technically speaking, Mellouli’s case addresses whether an immigration court analyzes a crime using the “categorical approach”—basing its analysis only on the information and charges laid out in the criminal conviction—or the “modified categorical approach,” which allows the court to explore facts relating to the criminal case, even if they were not reflected in the ultimate conviction. More broadly, Mellouli’s case shows the harshness of DHS’ interpretation of immigration laws, under which minor offenders—even green card holders—are mandatorily detained and deported, without any chance to argue their individual circumstances. Immigrants in recent years have successfully convinced the Supreme Court to rule against DHS regarding analogous statutory interpretations of other criminal statutes. The University of Minnesota’s Center for New Americans is arguing the case for Mellouli, and 89 law professors submitted an amicus brief supporting his position.

    The second case, Kerry v. Din, revisits the doctrine of “consular nonreviewability,” under which U.S. State Department consular officials’ decisions regarding immigration law are virtually unreviewable in courts. Even when immigration officials grant a visa petition, the State Department can still deny the actual visa for almost any reason at all. This scenario happened to Amber and Victor Ramirez of Kankakee, Illinois, in 2011. USCIS granted Amber’s petition for a visa for Victor, her spouse. Victor then traveled to the U.S. consulate in Juarez, Mexico to obtain the visa. The US consulate refused, however, saying only there was “reason to believe” Victor might engage in illegal activity in the United States.

    The consular officer specifically asked questions about Victor’s tattoos. Amber explained that they were not gang tattoos, and that one had the name of their daughter. The consular official refused to reconsider or explain further, and the family remains split. It now remains up to the Supreme Court to decide whether a federal court can hear their claim.

    Photo by Envios.

    This post originally appeared on Immigration Impact Blogon October 9, 2014. Reprinted with permission.

    About The Author

    Mark Noferi

    Mark Noferi teaches a Civil Rights and Immigration seminar at Brooklyn Law School, as well as legal writing. Professor Noferi's research interests focus on immigrants' rights, and criminal, constitutional and administrative law. He recently published on the right to counsel for immigration detainees (http://works.bepress.com/mnoferi/3/), and previously on due process limits on conspiracy liability. He also chairs a subcommittee of the New York City Bar studying immigration detention, which is actively advocating Congress for appointed counsel and reduced detention in immigration proceedings.  Their materials are available at http://www.nycbar.org/immigration-a-nationality-law.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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