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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 of marijuana should receive the benefit of the 30 grams or less of marijuana exception that is discussed in possession, supra. Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). Use of marijuana ought to be held equivalent to being under the influence. Eliminating the conviction. A conviction for use of marijuana may NOT be eliminated by state “rehabilitative relief” even if it occurred prior to July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. 2011) (en banc) (overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010)). A2. Possession of marijuana for sale. Crime Involving Moral Turpitude: Yes, because it involves drug trafficking. Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). Aggravated felony: Yes, as a drug trafficking offense, regardless of sentence imposed. Other Grounds: Deportable and inadmissible for conviction of an offense relating to a controlled substance. Gives the government “reason to believe” that the person has been or aided a drug trafficker, which is a separate ground of inadmissibility. A3. Produce Crime Involving Moral Turpitude: Yes, as trafficking, except that if the record left open the possibility that it was for personal use it might not be so held. Matter of Khourn, id. Aggravated felony. Maybe. Attempt to plead to possession or, better, use. Produce means grow, plant, cultivate, harvest, dry, process or prepare for sale. ARS § 13-3401(25). For a state offense to be an aggravated felony, the state offense must contain the same elements as an offense in one of the identified federal sections and the offense must be a felony in federal court. The federal law prohibits manufacture of a controlled substance, which could be analogized to production. Other Grounds: Deportable and inadmissible for conviction of an offense relating to a controlled substance. Might or might not give the government “reason to believe” that the person has been or aided a drug trafficker, which is a separate ground of inadmissibility. A4. Transport for sale, import into state, sell, transfer, offer to transport/import/sell/transfer a. Transport for sale, sell Crime Involving Moral Turpitude: Yes, as drug trafficking. Aggravated Felony: Yes. Straight transportation does not meet the general definition of trafficking. United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999); Saleres v. INS, 22 Fed. Appx. 831 (9th Cir. 2001)(Table). But because this offense is transport for sale it will be found to involve an element of trafficking. Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes. b. Import into this state Arizona Criminal Chart with Explanatory Endnote – August 2012 91
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Crime Involving Moral Turpitude: Yes, if the importation is necessarily for trafficking as opposed to personal use. Aggravated Felony: Yes, to the extent that the importation is for trafficking. Or, to the extent that this offense is analogous to 21 U.S.C. § 952(a), which criminalizes the importation of controlled substances or, if they are listed in schedules III, IV, or V, dangerous drugs. However, an argument could be made that importation into the state is akin to transportation, which does not meet the general definition of trafficking. United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999). Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes, as a ground of inadmissibility and deportability as an offense relating to controlled substances. c. Offer to transport for sale; Offer to sell; Offer to transfer. Crimes Involving Moral Turpitude: Yes as trafficking, except that if the record leaves open the possibility that the offer was to transfer for free, this may not be a CMT. Aggravated felony: No. A conviction for an “offer” to transport for sale, sell, transfer, or import is analogous to a solicitation offense, which does not constitute an aggravated felony. See Rosas- Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir. 2011). In Rosas-Castaneda, the Ninth Circuit even found that a charging document and plea agreement that showed a conviction for Attempted Transport for Sale under ARS § 13-3405(A)(4) was not categorically an aggravated felony since “[n]either document in the record of conviction produces any specific information that definitively rules out the possibility that Rosas was convicted of a solicitation offense. Id. at 886. However, a transcript of a plea colloquy that did not specifically mention an “offer” to transport for sale, sell, transfer, or import would likely trigger removal for an aggravated felony. While a plea to the generic solicitation statute of § 13-1002 is much safer in avoiding an aggravated felony, defense counsel who cannot otherwise avoid a drug trafficking offense should plead to § 13-3405(A)(4) and specify “offer” in the factual basis. If pleading to this statute, counsel could also plead to “transfer,” which is defined as furnishing, delivering or giving away marijuana. ARS § 13-3401(37). This will provide immigration counsel with an additional argument that the offense is not an aggravated felony; see Part d, infra. However, a plea to “offer” is the better option. Other Grounds: A conviction under Arizona’s “generic” solicitation statute, § 13-1002, is not a deportable controlled substance conviction or an aggravated felony. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997); see also Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999). However, the Ninth Circuit has found that a conviction under a “specific” solicitation statute, such as that contained in ARS §§ 13-3405(A)(4), 13-3407(A)(7), or 13-3408(A)(7) would render a noncitizen removable for an offense relating to a controlled substance. See Rosas-Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir. 2011); Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009). Therefore, counsel should attempt to plead their client to the generic solicitation statute under ARS § 13-1002. d. Transfer. “Transfer” means to furnish, deliver or give away. Crimes Involving Moral Turpitude: Yes as trafficking, except that if the record leaves open the possibility that the offer was to transfer for free, this may not be a CMT. Arizona Criminal Chart with Explanatory Endnote – August 2012 92
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