On Wednesday, the U.S. Supreme Court heard oral arguments for Mellouli v. Holder. The case centered on important legal issues concerning what crimes make a lawful permanent resident deportable and how a court should make that determination based on the conviction records. These arguments have been written about and discussed extensively. But, how did the case make it from a small Johnson County courtroom to the marbled halls of the US Supreme Court?
Not all cases that seek out Supreme Court review are selected; in fact, very few make it. Often times the cases that make the cut have been deliberately and methodically nurtured for the journey. In the Mellouli case, this process started very early on. Moones Mellouli was facing criminal charges brought on after he was stopped for a DUI. While he was being booked into the jail, police found four Adderall pills he that were located in his sock. He retained the service of a criminal defense attorney to assist him. The criminal defense attorney, mindful that non-citizens face very different consequences than citizens when it comes to criminal charges, insisted that Mr. Mellouli seek out the assistance of an immigration attorney. This is when we got involved.
Mr. Mellouli had no other criminal history other than the charges he faced from the DUI arrest. He was a green card holder with a great education. He was a productive member of society and had deep roots to the United States. Yet, one simple interaction with police had the potential of unraveling his whole life in the US; a possibility that, as time would reveal, became a reality. 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. Mr. Mellouli was convicted with a single count of possession of paraphernalia, namely, his sock. The offense is a misdemeanor under Kansas law.
The Department of Homeland Security (DHS), based on this conviction, still believed that Mellouli was subject to deportation. To be a deportable offense, the conviction must relate to a controlled substance listed in the federal list of controlled substances. But, the documents in Mr. Mellouli’s criminal case did not identify the type of drug that was involved and 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 United States as a permanent resident. The immigration Court did not agree.
We lost. But we had built a strong record and we appealed to the Board of Immigration Appeals. We lost again. Undeterred, we appealed the case to the Eighth Circuit Court of Appeals, which includes Missouri. The Eighth Circuit once 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. We did not think these decisions were correct because it did not seem right that something so simple should carry banishment from the US as a consequence. We also believed that given the specific language of Mr. Mellouli’s conviction, DHS had not met its requirements under the law. So, we kept pushing forward.
A lot of cases make it to circuit courts of appeal. Very few cases make it to the Supreme Court. 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. Sometimes in order to overcome the odds, it helps to have a bigger team. We enlisted the help of the Center for New Americans, a nonprofit organization with the University of Minnesota. The Center helped bring together even more resources and talent. Everyone worked hard to try and narrow the arguments to present it in the most compelling way possible. Lots of people from around the nation gave opinions, helped edit the legal briefs and played devil’s advocate. With so many people working together, we were hopeful that the Supreme Court could be convinced to hear the case. In order for the Supreme Court to accept a case, 4 of the 9 justices must agree to hear the case. The Supreme Court agreed to hear the case and on January 14, 2015, after months of briefing, the case was orally argued.
Watching the arguments unfold in the highest court in the nation is pure legal theater. The room was filled with attorneys, media, and spectators who sit awestruck at the realization of the journey that very few cases make. Getting this case from the Kansas City Immigration Court to the Supreme Court was difficult. It took vision and skill (to identify the compelling facts and legal issues), humility (to accept multiple loses and to keep trying), and luck (in finding the right people with the right resources to get the case before the Supreme Court). While the outlook of the case’s outcome is 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.