quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Effect of Selected Drug Pleas under Lopez and Carachuri
ENDNOTES
1
This chart was prepared by Katherine Brady of the Immigrant Legal Resource Center and updated in
July 2010. For further information and resources, go to www.ilrc.org/criminal.php.
2 Lopez v. Gonzales, 127 S.Ct. 625 (2006) held that a single possession conviction is not an aggravated
felony because it would not be punishable as a felony in federal court.
3 Carachuri v. Holder, 130 S.Ct. 2577 (June 14, 2010).
4 Where possible, have the record of conviction refer only to “a controlled substance” rather than a
specific identified substance such as cocaine. Bargain for an amended complaint or make a written plea
agreement to this effect; do not stipulate to a factual basis that identifies the substance. Without specific
identification, immigration authorities may not be able to prove that the offense involved a controlled
substance as defined under federal law, which has a somewhat different definition than under California
and many other state laws. See Ruiz-Vidal v. Gonzales 473 F.3d 1072 (9 th Cir. 2007) (because record of
conviction under Calif. H&S §11377 does not ID specific substance, there is no controlled substance
conviction for immigration purposes); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965). Note that this
defense does not apply to possession of paraphernalia. See footnote below.
5 Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000) (generally will eliminate offense); Estrada v.
Holder, 560 F.3d 1039 (9th Cir. 2009) (will not if there was a probation violation); De Jesus Melendez v.
Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007) (will not if prior pre-plea diversion).
6 See Carachuri v. Holder, supra. See also Matter of Carachuri, 24 I&N Dec. 382 (BIA 2007).
7 The Ninth Circuit found that Arizona possession of drug paraphernalia is a deportable controlled
substance offense even without a specific controlled substance identified on the record. See Luu-Le v.
INS, 224 F.3d 911 (9th Cir. 2000); Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). The BIA held that
it does not apply to presence in a place where drugs are used, either. Matter of Martinez-Espinoza, 25
I&N Dec. 118 (BIA 2009)
8 Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000) (paraphernalia); Nunez-Reyes v. Holder, 602
F.3d 1102 (9 th Cir. 2010) (under the influence, Calif. H&S § 11550(a)).
9 Ariz. Rev. Stat. §13-1002, a “generic” solicitation offense not linked to a specific crime, is not a
deportable drug offense. Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9 th Cir. 1997). In contrats, the
Ninth Circuit found that “specific” solicitation to commit a drug offense such as under Calif. H&S §
11352(a) is a deportable drug offense. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009)). The
court opined that Calif. P.C. § 653f(d) is “generic solicitation” and therefore should not be treated as a
deportable controlled substance offense. Ibid.
10 United States v. Rivera-Sanchez, 247 F.3d 905 (9 th Cir. 2001)(en banc) (California law); Leyva-Licea v.
INS, 187 F.3d 1147 (9 th Cir. 1999) (Ariz. Rev. Stat. §13-1002).
11 See 21 USC §841(b)(4), making this offense a misdemeanor and subject to the FFOA, which is the
basis for Lujan; see discussion at Defending Immigrants in the Ninth Circuit, §3.6(C), supra. Counsel
should arrange for a finding in the criminal record that the amount of marijuana was small.
Immigrant Legal Resource Center N-85