The “sock removal” case continues: Mellouli v. Lynch and compliance with the Courts mandate

Last June, the U.S. Supreme Court provided Moones Mellouli, a lawful permanent resident who had been ordered removed from the United States, with a victory in his efforts to reverse a removal order. The Court held that [f]ederal law ([8 U.S.C.] 1227(a)(2)(B)(i) . . . did not authorize Melloulis removal. It did not remand the case to the court of appeals or the Board of Immigration Appeals for further proceedings, thereby suggesting that the case had come to an end. Nonetheless, there now is a squabble between Mellouli and the U.S. government over just how big Melloulis victory was.

The Court ruled that Melloulis removal order based on a single conviction under Kansas law for possession of drug paraphernalia in this instance, a sock used to conceal a few tablets of a prescription drug was not authorized by federal immigration law. The case was returned to the U.S. Court of Appeals for the Eighth Circuit, which, without notice or briefing, remanded the case to the Board of Immigration Appeals (BIA) for further proceedings consistent with the Courts opinion. A close reading of the order suggests that the court of appeals thought that, despite the seeming finality of the Supreme Court ruling, there still might be a way to remove Mellouli under the drug provisions of the immigration statute.

After the Courts decision, the parties discussed possible resolution of the case. The U.S. government ultimately announced that it planned to dismiss the removal proceedings without prejudice, thereby leaving open the possibility of reinstituting the proceedings against Mellouli at some point. In contrast, Mellouli wants to ensure that the proceedings are dismissed with prejudice.

In the Supreme Court, Mellouli now seeks Justice Alito, who disagreed with the majoritys rejection of the removal order in Mellouli v. Lynch, to issue a stay to allow Mellouli to pursue efforts, including possible mandamus, to require the U.S. government to dismiss the removal proceedings with prejudice.

One might guess that Justice Alito, as well as the entire Court, would not want to tinker with the intricacies of the implementation of the Courts decision. However, Mellouli claims that the court of appeals is violating the Courts ruling by remanding for the BIA to come up with a way for justifying removal under the drug provisions of the removal statute when the Court has already ruled that Mellouli is not removable under its provisions. Efforts to circumvent the Courts ruling just might get Justice Alitos attention. Indeed, something in Mellouli’s stay motion apparently did get his attention and persuaded Justice Alito to request a response by the Department of Justice by 4 p.m. EST on August 20.

In addition, the matter of the finality of the Courts ruling is no small matter to Moones Mellouli. Mellouli wants certainty that the minor drug paraphernalia conviction does not possibly lead to further removal proceedings and possible detention if he returns to the United States. He already experienced threatened removal once, having been forced to leave the United States and his fianc. (Mellouli remains living outside the country.). The nature of Melloulis concerns, and the great potential harms he faces, offers insights into why removal matters differ from the ordinary civil matters handled by the courts.

All in all, the struggle between the Justice Department and Moones Mellouli might seem like small potatoes. One might legitimately ask, however as many did as the United States pressed a minor drug paraphernalia involving a sock all the way to the Supreme Court why the U.S. government is taking such tough litigation positions to no apparent greater end.