Unit 7:
Drug Offenses
Topics
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Elements of Controlled Substance Ground of
Deportability
Drug Trafficking Aggravated Felony Ground
Inadmissibility Issues
Controlled Substance INA §
237(a)(2)(B)(i)

Elements of ground of removal
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Noncitizen
Convicted
After admission
Law relating to controlled substance as defined in
21 USC § 802
Not single offense for personal use of 30 grams or
less of marijuana
Non-Convictions
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Disposition under Federal First Offender Act
[18 USC § 3607] for possession of controlled
substance
State rehabilitative treatment for first offenders.
Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000)
Giving away small amounts of marijuana
Conviction Review 2

Does not include:
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Juvenile disposition. Matter of Devison, 22 I&N
Dec. 1362 (BIA 2000)
Conviction on direct appeal
Conviction vacated for legal or constitutional defect
Matter of Pickering, 23 I&N Dec. (BIA 2003)
Preparatory Crimes 9th Cir.

In the 9th Cir. “attempts” and “conspiracies”
are the only preparatory crimes that satisfy the
controlled substance ground of deportability
because the statute lists them expressly See
Coronado-Durazo v. INS, 123 F.3d 1322 (9th
Cir. 1997) (Arizona solicitation conviction is not
a controlled substance offense)
BIA and Preparatory Crimes

According to the BIA, a noncitizen is
deportable for:
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–
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facilitation for sale Matter of Del Risco, 20 I&N 109
(BIA 1989) and
solicitation for sale Matter of Beltran, 20 I&N Dec.
521 (BIA 1992)
but not for misprision of felony. Matter of Velasco,
16 I&N Dec. 281 (BIA 1977)
Not Single Marijuana Conviction


The government has the burden of establishing
that the offense is not a single offense of
simple possession for personal use of 30
grams or less of marijuana.
A respondent will not be subject to removal
under this ground, absent such proof.
Federal Controlled Substance


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In removal case government should lose if it
cannot establish that substance is on federal
list. Matter of Paulus, 11 I&N Dec. 274 (BIA
1965)
Misprision (concealing felony) Matter of
Velasco, 16 I&N Dec. 281 (BIA 1977)
Fake controlled substances
Paraphernalia


Possession of Paraphernalia is an offense
relating to a controlled substance. Luu-Le
v. INS, 224 F.3d 911 (9th Cir. 2000)
Nevertheless, an expungement under
rehabilitative statute will defeat deportability
in 9th Circuit. Cardenas-Uriarte v. INS, 227
F.3d 1132 (9th Cir. 2000)
Strategies to Avoid Removal

Work with criminal defense practitioner to
identify an offense that does not relate to a
controlled substance like misprision or
solicitation.
Exercise

Please indicate by show of hand whether the
following offense:
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Always
Sometimes or
Never
Fits the controlled substance deportability
ground
Drug Trafficking
Aggravated Felonies
two prongs:
1.“drug trafficking crime”
2. Common meaning of
Trafficking
Definition

INA § 101(a)(43)(B) defines aggravated felony
to include: "any illicit trafficking in a controlled
substance (as defined in section 102 of the
Controlled Substances Act), including any
drug trafficking crime (as defined in section
924(c)(2) of title 18, United States Code)"
Definition 2

This definition has two parts or “prongs”: (1)
“illicit trafficking in a controlled substance
[listed on the federal schedules], and (2)
including “any drug trafficking crime (as
defined in [18 U.S.C. §] 924(c)(2)) . . . .”
Elements of Commercial
Trafficking
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A conviction
That is a felony
For a substantive offense (or attempt or
conspiracy)
engaging in a commercial transaction
In a federally listed controlled substance
Elements Continued
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
The BIA evaluates whether a state offense is a
felony by examining the maximum potential
punishment under the criminal statute. Matter
of Davis, 20 I. & N. Dec. 536 (BIA 1992).
Under this test, a conviction for selling a small
amount of marijuana punishable by less than a
year is not an Aggravated felony.
9th Circuit Interpretation

Straight sale is an aggravated felony, while
offering to sell or commit any drug offense
is not an aggravated felony. United States v
Rivera-Sanchez, 247 F.3d 905, 907-8 (9th Cir.
2001) (en banc)
Drug Trafficking Crime defined:

For purposes of this subsection, the term "drug
trafficking crime" means any felony punishable
under the Controlled Substances Act 21 U.S.C.
§ 801 et seq.), the Controlled Substances
Import and Export Act 21 U.S.C. § 951 et seq.),
or the Maritime Drug Law Enforcement Act 46
U.S.C. App. § 1901 et seq.).
Drug Trafficking Crime
Aggravated felony if:
 Federal offense identified in listed statutes or
state conviction analogous to an federal listed
in three statutes AND
 Offense is a felony.
Matter of Yanez-Garcia, 23 I&N 390 (BIA 2002)
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Definition of Felony
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21 U.S.C. § 802 (13) defines felony to mean
“any Federal or State offense classified by
applicable Federal or State law as a felony”
21 U.S.C. § 802(44) defines "felony drug
offense" as “an offense that is punishable by
imprisonment for more than one year under
any law of the United States or of a State”
“Felony” for purposes of Drug
Trafficking Crime

For offense that is not a felony under federal
law, BIA looks to classification of convicting
jurisdiction to decide whether an offense is a
felony when determining whether offense is a
felony drug trafficking crime. Matter of SantosLopez, 23 I&N Dec. 419 (BIA 2002)
Possession of Controlled
Substance
First offense possession is a federal
misdemeanor with two exceptions
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possession of > 5 grams of crack
possession of flunitrazepam, a date rape drug
everything else is a misdemeanor
First Offense Possession
State Offense
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If state treats possession offense as
misdemeanor, then it not an Agg. felony
If state treats possession offense as a felony,
then it is a aggravated felony.
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Except for 3d Circuit, which examines state offenses
by analyzing how federal law would punish that
offense. Gerbier v. Holmes, 280 F.3d 297 (3d Cir.
2002)
Enhancement or Distinct Offense

The BIA recognizes that a person is deportable
under the controlled substance, moral
turpitude, aggravated felony, and firearm
grounds of deportability for a conviction of a
substantive offense, not an enhancement.
Matter of Rodriguez-Cortes, 20 I&N Dec. 587
(BIA 1992)
Second Offense Possession
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Under federal law, second offense possession
is a felony if the defendant has a prior
conviction, otherwise it is a misdemeanor 21
U.S.C. § 844
Under Apprendi, this means that 21 U.S.C. §
844 is an enhancement. Second offense
possession is not a distinct substantive offense
under federal law.
Second Offense Possession (9th
Circuit View
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The Ninth Circuit treats second offense
possession as a misdemeanor under federal
law. U.S. v. Ballasteros-Ruiz, 319 F.3d 1101
(9th Cir. 2003)
Since it neither is a drug trafficking crime
because it is not a felony nor does it involve
trafficking, second offense possession is not an
aggravated felony
Other Issues
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Some circuits decided this issue before
Apprendi. See, e.g., Amaral v. INS, 977 F.3d
33 (1st Cir. 1992)
Regardless of circuit law, 21 U.S.C. 844 (a) is
only a felony if the defendant had a prior
conviction.
Tip

In a circuit that hasn’t recognized that 21
USCS § 844(a) is an enhancement for second
offense possession, argue that a noncitizen is
not deportable unless ICE can prove that one
conviction took place before the other.
Reason to Believe
INA 212(a)(2)(C)(i): creates ground of
inadmissibility for a noncitizen for whom the
consular or immigration officer knows or has
reason to believe is or has been an illicit
trafficker in any controlled substance or in any
listed chemical in section 102 of the Controlled
Substances Act (21 U.S.C. 802)
Reason to Believe 2
Ground of inadmissibility also includes:
 a knowing aider, abettor, assister,
conspirator, or colluder with others in the
illicit trafficking in any such controlled or
listed substance or chemical
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Exercise 1

Is a conviction for unlawful possession of every
controlled substance in your state’s schedules
necessarily a deportable offense? How can
you tell?
Exercise 2

Does your state have misprision of felony or
other non-substantive offense that could defeat
controlled substance deportability?