quick reference chart and notes for determining immigration - ILRC

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