quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 Inadmissibility grounds. Conviction of any offense “relating to” controlled substances or attempt or conspiracy to commit such an offense causes inadmissibility under 8 USC § 1182(a)(2)(A)(i)(II). In addition conduct can cause inadmissibility even absent a conviction. First, a noncitizen who is a “current” drug addict or abuser is inadmissible. 8 USC § 1182(a)(1)(A)(iv). Second, a noncitizen is inadmissible if immigration authorities have probative and substantial “reason to believe” that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. 8 USC § 1182(a)(2)(C). Third, an infrequently used section provides that a noncitizen is inadmissible if she formally admits all of the elements of a controlled substance conviction. 8 USC § 1182(a)(2)(A)(i). The latter does not apply, however, if the charge was brought up in criminal court and resulted in something less than a conviction. 107 See further discussion of conduct grounds in Part E, infra. B. Key Defense Strategies: Create a Record that Does Not Specify the Controlled Substance; Plead to Accessory After the Fact 1. Create a Record that Does Not Specify the Controlled Substance The immigration Act, including the definition of aggravated felony, consistently defines “controlled substance” as a substance listed in federal drug schedules. 108 If state law covers controlled substances that are not on federal lists, and if the specific controlled substance in a particular state conviction is not identified (either in the record of conviction or the terms of the statute) as one on the federal list, then immigration authorities cannot prove that the offense involved a controlled substance as defined by federal law. The conviction will not be an aggravated felony or basis for deportability or inadmissibility as a controlled substance conviction. Matter of Paulus, 11 I&N Dec. 274 (BIA 1965); Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9 th Cir. 2007) ( H&S § 11379); Esquivel-Garcia v. Holder, __ 9 th Cir. __ (January 29, 2010) (Calif. H&S § 11350). A court may not consult information in a dropped charge in an attempt to identify the substance. Example: Mr. Ruiz-Vidal was charged with violating Calif. H&S § 11378(a) by possessing methamphetamine for sale. Methamphetamine is included in federal drug schedules. Mr. Ruiz-Vidal bargained for that charge to be dropped, and instead pled guilty to possession of a “controlled substance” under Calif. H&S Code § 11377(a). The record of conviction did not establish the specific controlled substance. The Court held that § 11377(a) is a divisible statute, because it names some substances that do and some that do not appear in the federal schedules. Therefore a plea to § 11377 with no reference to a specific substance is not 107 See, e.g., Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission) and discussion in § 4.4. 108 See, e.g., INA § 101(a)(430(B), 8 USC § 1101(a)(43)(B) (controlled substance aggravated felony); INA § 212(a)(2)(A)(i)(II), 8 USC 1182(a)(2)(A)(i)(II) (inadmissibility ground); INA § 237(a)(2)(B), 8 USC § 1227(a)(2)(B) (deportability ground); providing that controlled substance is defined at 21 USC § 802. Immigrant Legal Resource Center N-71
California Quick Reference Chart and Notes February 2010 proven to be a deportable offense “relating to” a federally defined controlled substance. Under the categorical approach the Court was not permitted to use information from the dropped § 11378(a) charge to establish that methamphetamine was the controlled substance involved in the plea to Calif. H&S § 11378(a). Ruiz Vidal should work to prevent other convictions involving a “controlled substance,” such as H&S §§ 11378 and 11379, from being held an aggravated felony or controlled substance. Several substances listed in Calif. Health & Safety Code § 11378 et seq. do not appear on the federal schedule. 109 See also Esquivel-Garcia v. Holder, __ 9 th Cir. __ (January 29, 2010), holding the same for Calif. H&S § 11350. This strategy obviously does not work where the statute identifies the substance, e.g. possession for sale of marijuana. A conviction for any trafficking activity that relates even to an unspecified state controlled substance will be held to be a crime involving moral turpitude offense. 110 Simple possession is not a crime involving moral turpitude. See § N.3 Categorical Approach, Record of Conviction concerning how to create a record that does not identify a controlled substance. The Paulus defense does not apply to possession of paraphernalia and certain other offenses. The BIA and the Ninth Circuit have held that the Paulus defense does not apply to a conviction for possession of paraphernalia including Calif. Health & Safety Code § 11364(a). 111 This is a deportable controlled substance conviction even if a specific substance is not identified on the reviewable record. The BIA stated that the defense also will not apply to a conviction for, e.g., maintaining a place where drugs are used, or sale of a non-controlled substance as a “lookalike” controlled substance. 112 A first conviction for possession for paraphernalia can be eliminated for immigration purposes by state rehabilitative relief, e.g. deferred entry of judgment, Prop 36, P.C. § 1203.4. 113 109 The court in Ruiz-Vidal identified apomorphine, geometrical isomers, androisoxazole, bolandiol, boldenone, oxymestrone, norbolethone, stanozolol, and stebnolone as being in H&S § 11377(a) but not the federal schedule. Id. at p. 1078 and note 6. Practitioners have suggested that the following additional substances also are listed on the California schedule but not the federal: Difenoxin (CA- Schedule I; 11054(b)(15)), Propiram (CA-Schedule I; 11054(b)(41)), Tilidine (CA-Schedule I; 11054(b)(43)), Drotebanol (CA-Schedule I; 11054(c)(9)), Alfentany (CA- Schedule II; 11055(c)(1)), Bulk dextropropoxyphene (CA- Schedule II; 11055(c)(5)), and Sufentanyl (CA-Schedule II; 11055(c)(25)). 110 Matter of Khourn, 21 I& N Dec. 1041 (BIA 1997 (drug trafficking is a CMT). 111 Luu-Le.v I.N.S., 224 F.3d 911 (9 th Cir. 2000) (Arizona paraphernalia conviction held to be an offense “relating to” a federally defined controlled substance despite the fact that an offense was not defined on the record; Ramirez- Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (Calif. Health & Safety Code § 11364(a) is an offense relating to a controlled substance, but was eliminated for immigration purposes by exupngement under Calif. P.C. § 1203.4 pursuant to Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000). 112 Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). 113 Ramirez-Altamirano, supra. N-72 Immigrant Legal Resource Center
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