Category Archives: Immigration Law – News, Recent Rulings and Victories

Supreme Court Reverses Deportation Decision for Possessing a Sock

Court rules defendant cannot be deported for “sock” possession, supporting trend to protect lawful permanent residents from strict immigration law punishments and deportation.

On Monday June 8th Sharma-Crawford Attorneys at Law saw their legal theory and years of groundwork it invested in the Mellouli v. Lynch case justified. The Supreme Court reversed the Department of Homeland Security’s (DHS) decision to deport Moones Mellouli, a lawful permanent resident with deep ties in the U.S. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

“My initial reaction is that The Supreme Court’s decision is a continuation of a promising trend to limit the review of conviction records, protect the due process rights of immigrants, and protect them from the often harsh punishments of immigration laws,” states Rekha Sharma-Crawford a partner in Sharma-Crawford Attorneys At Law, LLC, an immigration law firm based in Kansas City, Missouri.

Mellouli v. Lynch centered on critical legal issues: what crimes make a lawful permanent resident deportable and how a court should make that determination based on conviction records.

Moones Mellouli was facing criminal charges brought on after he was stopped for a DUI. During the booking process, police allegedly found four Adderall pills located in Mellouli’s sock. He retained the service of a criminal defense attorney to assist. The criminal defense attorney, mindful that non-citizens face very different consequences than citizens when it comes to criminal charges, contacted Rekha Sharma-Crawford, and Sharma-Crawford Attorneys At Law, LLC became involved.

Mellouli, a green card holder, faced the potential for unraveling his status and life in the U.S. solely based on those four pills.

“Working with defense counsel, we worked to craft a plea agreement that was just and fair given the conduct and other mitigating factors. The prosecutor agreed. Mellouli was convicted with a single count of possession of paraphernalia, namely, his sock, a misdemeanor under Kansas law,” explains Rekha.

Based on this conviction, DHS still believed that Mellouli was subject to deportation. To be a deportable offense, the conviction must relate to a controlled substance listed on the federal list of controlled substances. But, the documents in Mellouli’s criminal case did not identify the drug type involved.

“Since Kansas has some substances on its list of controlled substance that are not on the federal list, we argued that Mellouli could not be deported, and he should be able to stay in the U.S. as a permanent resident. The immigration court did not agree,” says Rekha. “We appealed to the Board of Immigration Appeals. We lost again. Undeterred, we appealed the case to the Eighth Circuit Court of Appeals, the appropriate appellate court based on where the immigration court is located.”

The Eighth Circuit again sided with DHS in saying that deportation was proper for someone who was only convicted of possessing a sock so long as the sock had anything to do with a controlled substance.

Rekha states, “We did not think any these decisions were correct. We believed that given the specific language of Mr. Mellouli’s conviction and the existing case law, DHS had not met its requirements under the law. We pushed forward.”

Similar arguments have been written about and debated at length, and cases are argued often in the circuit courts of appeal. However, only 1 percent of petitions filed with the Supreme Court are accepted for oral argument. From June 30, 2011 and July 2, 2012, 7654 petitions were filed with the Supreme Court; only 66 were accepted. The Mellouli v. Lynch case, which began in a small Johnson County courtroom and experienced several defeats in lower courts, was one of the very few argued in the U.S. Supreme Court.

“Often times the cases that make the cut have been deliberately and methodically nurtured along the way. We enlisted the help of the Kate Evans at the Center for New Americans, a nonprofit organization at the University of Minnesota. Everyone worked hard, narrowing the arguments to present in the most compelling way. People and organizations around the nation wrote amicus briefs, helped edit the Supreme Court briefs and worked to prepare Jon Laramore for the argument. With so many working together, we were hopeful that the Supreme Court could be convinced to hear the case despite multiple losses,” explains Rekha.

The Supreme Court’s reversal of the DHS’s decision to deport Mr. Mellouli for sock possession supports the trend to protect lawful permanent residents from strict immigration law punishments and deportation. While the ruling of the case’s outcome was positive, the fact that the case made it all the way to the Supreme Court after so many defeats is a victory on its own and for immigrants.

The Kansas Employment Crackdown: ICE Enforcement Actions

Counties in Eastern Kansas are being raided. Employers and employees, alike, are at risk of criminal charges if they work without proper documentation or hire workers who are without proper work authorization from the US government. What initially looked like one prosecutor’s office’s harsh enforcement of Immigration laws, under the veil of State law, against undocumented workers has revealed itself to be much more.

For the second time, in less than two months, Immigration and Custom’s Enforcement “ICE” has offered for prosecution, cases against employers hiring undocumented workers. After executing search warrants the day before, on November 6, the owners of Wei’s Super Buffet restaurant in Olathe were charged in Federal District Court with harboring undocumented workers who were in the United States unlawfully. The investigation, according to the US Attorney’s Office in Kansas, has alleged that “beginning in February 2011 agents of Homeland Security Investigations began surveillance on the owners, managers and employees at Wei’s Super Buffet. They checked Quarterly Wage Report and Unemployment Tax Returns submitted by the restaurant to the Kansas Department of Labor and they identified employees who were illegally present in the United States. They also identified apartments rented by the defendants where undocumented workers were living.”

This latest enforcement action follows the raid, on September 20, 2013, of another restaurant. The restaurant manager of El Mezcal Mexican Restaurant in Ottawa, Kan., was charged, again by the US Attorney’s Office, with four counts of harboring illegal aliens for financial gain, and five counts of encouraging illegal aliens to reside in the United States for financial gain. The investigation of these alleged crimes also occurred between September 7, 2011 and June 14, 2013 by ICE. According to Court documents, “HSI special agents received information that El Mezcal was not completing I-9 Employment Eligibility Verification forms for its employees, as required by federal law for all U.S. businesses. HSI special agents reviewed the restaurant’s documents and discovered the restaurant did not have I-9 forms for 14 employees.”

In both cases, if convicted, the defendants face a maximum penalty of 10 years in federal prison and a fine up to $250,000. If the owners are not US citizens, there are also sure to be immigration consequences which have the potential of jeopardizing their abilities to remain in the US.

If these cases are any indication, it would not be surprising if more employers and employees will become the target of ICE’s efforts to crackdown on unauthorized employment practices. Employees should always take precautions to ensure that their documents are in order and are authentic. Employers should, likewise, take steps to put preventative measures in place to ensure compliance with US immigration laws.

Sharma-Crawford Attorneys at Law is a Kansas City, Missouri, firm deeply experienced in the complexities of immigration litigation. Whether you are facing criminal or civil litigation in state, federal or immigration court, in Kansas or Missouri – the caring professionals at Sharma-Crawford can help you navigate through the complex legal system. Sharma-Crawford now also offers a full range of business related immigration services.  For more information, please call (816) 994-2300. The choice of a lawyer is an important decision and should not be based solely on advertisements. The information contained in this article is general information and should not be considered legal counsel.