Professor Nancy Morawetz: Deferring to Itself? The Office of the Solicitor General’s Odd Argument in Mellouli

Nancy Morawetz of NYU offers her thoughts on Mellouli v. Holder, an immigration case set for oral argument before the Supreme Court on January 14: 

 

This Term, the Supreme Court will hear Mellouli v. Holder (Dkt. No. 13-1034), its fourth case in the last decade on drug deportability.  The issue in Mellouli is whether a Kansas drug paraphernalia conviction meets the federal deportability ground when Kansas classifies several drugs as controlled substances that are not on the federal schedule.  Predictably, the Office of the Solicitor General (OSG) argues that the Supreme Court should defer to a BIA case called Martinez –Espinoza, 25 I.&N. Dec.118 (B.I.A.2009), which addresses deportability for paraphernalia offenses.  But the OSG goes much further in its brief, ignoring the views of the BIA while at the same time urging deference to the BIA.  It is quite a twisted argument and should make for an interesting colloquy before the Court.

The problem for the government is that the Martinez-Espinoza case is in clear conflict with the way that the BIA treats drug possession offenses.  The BIA has long held that deportability based on a conviction for possession offense must establish that the offense was for a drug specified in federal law.  So it takes quite a bit of dancing around precedent for the OSG to read the drug deportability ground differently for paraphernalia offenses.

So what has the OSG done?  It decided to sidestep the problems with the BIA’s logic and instead rewritten the history of BIA caselaw on drug deportability.  The OSG’s brief turns to a 2010 unpublished BIA case and a recent DHS effort to reverse BIA precedent and essentially asks the Court to treat the unpublished case and DHS’s efforts to overturn the precedential cases as evidence that the precedent is not solid.  Amazingly, the OSG makes this argument even though the BIA just reaffirmed its rule in a precedent decision last October.  Matter of Ferreira, 26 I.&N. Dec. 415 (BIA 2014).

Reading the OSG brief one might think that an unpublished decision from the BIA is worthy of the same respect as a published decision.  But the BIA, like the circuit courts, plainly provides in its rules that unpublished decisions are not precedential (and even discourages citation to those decisions in 4.6(d)(iii) of the BIA Manual).  Maybe the OSG wishes the BIA had adopted its sweeping view of deportability for drug offenses.  But all it is really claiming is that the Supreme Court should defer to the legal arguments that the OSG prefers!  That is plainly wrong under Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), which denies deference to litigation positions.

 Most disturbingly, the OSG’s argument to the Court ignores long established precedent on the scope of the drug deportability ground, allowing a person to be deported for an offense that is not punished by federal law.  That is not the rule that Congress put in the statute. It is a terrible rule that allows a state’s idiosyncratic drug policy to dictate federal policy.  The Court should reject this last minute and poorly thought through approach to identifying those drug crimes that warrant deportation.

The U.S. government's brief is available here.

 

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Professor Nancy Morawetz: Deferring to Itself? The Office of the Solicitor General's Odd Argument in Mellouli