quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Aggravated Felony: Probably not. Although possession of paraphernalia with intent to commit
a drug trafficking offense (such as manufacturing) could be held an aggravated felony, the vast majority
of Arizona cases include only possession of paraphernalia for personal use and will not be held an
aggravated felony.
Aggravated Felony as a Trafficking Offense: Divisible. Unless the charging document
specifically refers to possession of paraphernalia that could be used for trafficking offenses, immigration
judges will not find this to be an aggravated felony.
Aggravated Felony as a Federal Analogue: Appears not to be. The only statute dealing with
drug paraphernalia is 21 U.S.C. § 863(a) (sale, offer for sale, use of mails or interstate commerce to
transport, or to import or export drug paraphernalia) and it is not sufficiently analogous to ARS 13-3415
to make it an aggravated felony.
Controlled Substance Ground: Probably. The Ninth Circuit has held that ARS § 13-3415 is
categorically an offense relating to a controlled substance because the statute requires proof that the
paraphernalia be linked to controlled substances. Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000). However,
the BIA recently held that a waiver of inadmissibility may be available for a conviction of paraphernalia
that relates to a single offense of simple possession of 30 grams or less of marijuana . Matter of
Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). This suggests that a conviction for paraphernalia
could also fit into the similar exception to deportability if it involved 30 grams or less of marijuana,
although the BIA has thus far rejected this argument. Counsel should assume conservatively that a
conviction for paraphernalia will always trigger the controlled substance ground of removability, although
arguments may be available.
B. It is unlawful for any person to deliver, possess with intent to deliver or manufacture with intent to
deliver drug paraphernalia knowing, or under circumstances where one reasonably should know, that
it will be used to plant, propagate, manufacture … conceal, inject, ingest, inhale or otherwise
introduce into the human body a drug in violation of this chapter. Class 6 felony.
Crime Involving Moral Turpitude (CMT): Probably divisible, see A. A failure to “reasonably
know” the use something will be put to should not be held to involve moral turpitude.
Aggravated Felony: Not clear.
As a Drug Trafficking Offense: This might be a drug trafficking offense if the record of
conviction establishes that there was an intent to deliver or manufacture drug paraphernalia knowing that
it would be used to “plant, propagate…contain” etc. To avoid this result, defense counsel should plead to
the generic language of the statute.
As a Federal Analogue: Probably not, as this should not be held sufficiently close to 21
U.S.C. § 863(a) (see Part A, supra) to make it an aggravated felony. Better plea is to possession under A,
or leave the record of conviction vague as to whether Part A or B was the offense of conviction.
Controlled Substance Ground: Probably. ARS § 13-3415 has been held an offense relating to
a controlled substance because the statute requires proof that the paraphernalia be linked to controlled
substances. Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000). The BIA recently held that a waiver of
inadmissibility may be available for a conviction for paraphernalia that relates to a single offense of
Arizona Criminal Chart with Explanatory Endnote – August 2012
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