quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
§ N.8 Controlled Substances<br />
(For more in<strong>for</strong>mation, see Defending Immigrants in the Ninth Circuit, Chapter 3,<br />
www.ilrc.org/criminal.php)<br />
A. Overview of Penalties <strong>for</strong> Drug Offenses<br />
B. Key Defense Strategies: Create a Record that Does Not Specify the Controlled Substance; Plead to Accessory<br />
After the Fact<br />
1. Create a Record that Does Not Specify the Controlled Substance<br />
2. Plead to Accessory after the Fact<br />
C. Simple Possession or Less<br />
D. Sale <strong>and</strong> Other Offenses beyond Possession<br />
E. “Conduct-Based Grounds: Formal admission of an Offense, Being an Addict or Abuser, <strong>and</strong> the<br />
Government has “Reason to Believe” the Noncitizen was involved with Trafficking<br />
F. Quick Reference Chart <strong>for</strong> Effect of Pleas: Ninth Circuit Law under Lopez v. Gonzalez<br />
Chart on Immigration Consequences of Drug Pleas. Following this Note is a one-page Chart<br />
that summarizes advice <strong>for</strong> pleading to Cali<strong>for</strong>nia drug offenses. It may be helpful to take the<br />
Chart to court or check it as you read this chapter. 106<br />
A. Overview of Penalties <strong>for</strong> Drug Offenses<br />
Aggravated felony. Under 8 USC § 1101(a)(43)(B), a controlled substance offense can<br />
be a “drug trafficking” aggravated felony in either of two ways: (1) if it is an offense that meets<br />
the general definition of trafficking, such as sale or possession <strong>for</strong> sale, or (2) if it is a state<br />
offense that is analogous to certain federal felony drug offenses, even those that do not involve<br />
trafficking, such as simple possession, cultivation, or some prescription offenses. Case law has<br />
established that a state possession conviction with no prior drug convictions is not an aggravated<br />
felony, unless it is possession of flunitrazepam or 5 grams or more of crack cocaine. For<br />
in<strong>for</strong>mation as to when a state possession conviction with a drug prior might be held an<br />
aggravated felony, see Part C.<br />
Deportability grounds. Conviction of any offense “relating to” controlled substances,<br />
or attempt or conspiracy to commit such an offense, causes deportability under 8 USC §<br />
1227(a)(2)(B)(i). A noncitizen who has been a drug addict or abuser since admission to the<br />
United States is deportable under 8 USC § 1227(a)(2)(B)(ii), regardless of whether there is a<br />
conviction.<br />
106 This Note <strong>and</strong> the Controlled Substances Chart following it were updated in June 2010 to reflect the Supreme<br />
Court’s decision in Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (June 14, 2010), that a prior drug conviction does<br />
not cause a subsequent simple possession conviction to be an aggravated felony if the court does not make a <strong>for</strong>mal<br />
finding of the prior conviction.<br />
N-70 Immigrant Legal Resource Center