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. Yes, except that the law is unclear regarding a conviction for giving away a
“small amount” of marijuana for free. If this plea cannot be avoided, a record that conclusively
establishes that the conviction was for giving away a small amount of marijuana at least will provide an
argument to immigration attorneys.
The rationale is as follows. The offense should not be classed as an aggravated felony because
under 21 USC §841(b)(4), giving away a small amount of marijuana for free is a federal misdemeanor,
and non-trafficking offenses are aggravated felonies only if they are analogous to federal felonies.
However, the BIA stated that it would not honor this exception, but did so in a case where the immigrant
had not proved that only a “small amount” was involved. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008).
It’s not clear what the outcome would be if a small amount had been proved in the criminal case. Counsel
should attempt to avoid pleading to this offense, but if that is not possible counsel should make a record
that the conviction was for giving away a small amount of marijuana. (Case law does not supply a
specific amount.) Better yet would be a conviction for offering to give away a small amount of
marijuana, because this would supply immigration counsel with two possible arguments.
Other Grounds: Yes, as a ground of inadmissibility and deportability as an offense relating to
controlled substances.
78. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous
drugs, ARS § 13-3407, or narcotic drugs, ARS § 13-3408
Persons who knowingly
(1) Possess or use a dangerous or narcotic drug.
(2) Possess such a drug for sale.
(3) Possess equipment or chemicals, or both, for the purposes of manufacturing such a drug.
(4) Manufacture such a drug.
(5) Administer such a drug to another person.
(6) Obtain or procure the administration of such a drug by fraud, deceit, misrepresentation or subterfuge.
(7) Transport for sale import into this state or offer to transport for sale or import into this state, sell,
transfer or offer to sell or transfer such a drug.
NOTE: On July 14, 2011, the Ninth Circuit prospectively overturned Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000), which had held that a single state drug possession conviction
expunged pursuant to “rehabilitative relief” would not trigger removability as a controlled
substance offense. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). Therefore, a
single conviction received on or after July 14, 2011 for simple possession, possession of
paraphernalia, or another minor drug offense can no longer be eliminated for immigration
purposes by obtaining a set aside under ARS § 13-907.
A single conviction for simple drug possession or possession of paraphernalia offense
entered prior to July 14, 2011 may still be eliminated for immigration purposes under § 13-907 as
long as the defendant did not violate probation. See Estrada v. Holder, 560 F.3d 1039 (9th Cir.
2009). However, a conviction for use or under the influence of drugs will trigger removability as a
controlled substance offense even if the conviction occurred prior to July 14, 2011. See Nunez-Reyes
v. Holder, 646 F.3d at 695 (overruling Rice v. Holder, 597 F.3d 952 (9th Cir.2010)).
Arizona Criminal Chart with Explanatory Endnote – August 2012
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