CHART Effect of Selected Controlled Substance Convictions ... - ILRC

Immigrant Legal Resource Center, www.ilrc.org
July 2011
CHART 1
Effect of Selected Controlled Substance Convictions
In Immigration Proceedings Arising in the Ninth Circuit
OFFENSE
First possession
(of a specified controlled
substance 3 (“CS”))
DEPORTABLE &
INADMISSIBLE
AGG FELONY
ELIMINATE BY
REHABILITATIVE
RELIEF, only in 9 th Circuit,
and only convictions from
before July 14, 2011 2
YES NO 4 violation, and no prior preplea
YES as long as no probation
diversion
5
First poss. flunitrazepam YES YES 6 YES, see above
Possession
(of a specified CS)
where there is a drug
prior
YES
NO, if no finding of
the prior appears in
the record. 7
NO
Transportation for
personal use
(of a specified CS)
First offense “less serious”
than poss, (e.g. poss of
paraphernalia, 8 use)
Second “less serious”
offense
YES NO NO
YES, unless a poss of
paraphernalia relates
only to small amount
marijuana or hashish 9
NO
YES NO NO
YES for poss paraphernalia,
NO for under the influence 10
Sale of a specified CS;
Sale of paraphernalia
YES YES NO
Offer to sell or to commit
other drug offense
(involving a
specified CS)
YES unless “generic
solicitation” 11
NO 12 but only in
immigration
proceedings held in
the Ninth Circuit
NO
Give away small amount
of marijuana
YES MAYBE NOT 13 MAYBE 13
Possession for Sale
(of a specified CS)
YES YES NO
Criminal and Immigration Law 3-1

Immigrant Legal Resource Center, www.ilrc.org
July 2011
Effect of Selected Drug Convictions in Ninth Circuit
ENDNOTES
1 Prepared by Katherine Brady of the Immigrant Legal Resource Center. See further discussion
in Brady, Tooby, Mehr, Junck, Defending Immigrants in the Ninth Circuit (2011) (www.ilrc.org).
2 In Nunez-Reyes v. Holder __F.3d__ (9 th Cir. July 14, 2011) (en banc) the court reversed Lujan-
Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000), but applied this ruling only to convictions on or
after (or perhaps just after) July 14, 2011. See Practice Advisory at www.ilrc.org/criminal.php.
3 Federal law uses a slightly different list of drugs than California and many other states do. If
the specific controlled substance is not identified on the state record, immigration authorities may
not be able to prove that the offense involved a substance on the federal list. Ruiz-Vidal v.
Gonzales 473 F.3d 1072 (9 th Cir. 2007) (because record of conviction under Calif. H&S §11377
does not ID specific substance, offense is not a deportable drug conviction); Esquivel-Garcia v.
Holder, 594 F.3d 1025 (2010) (same for H&S Code § 11350); Matter of Paulus, 11 I&N Dec.
274 (BIA 1965). Seek a record of conviction (e.g., amended complaint, factual basis, written plea
agreement) that refers to “a controlled substance” rather than a specific drug.
4 Lopez v. Gonzales, 549 U.S. 47 (2006) (first state possession offense is not an aggravated
felony because it would not be punishable as a felony under federal law). But see note 6.
5 Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) (probation violation); De Jesus Melendez v.
Gonzales, 503 F.3d 1019 (9th Cir. 2007) (prior pre-plea diversion).
6
Conviction for simple possession of flunitrazepam (date-rape drug) is an aggravated felony
because it is a felony under federal law. The same was true of possession of 5 grams of crack,
until this was a made a federal misdemeanor by the Fair Sentencing Act, Pub. L. 111-220 (August
3, 2010). Arguably pre-8/3/10 crack convictions are not aggravated felonies.
7
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). See Practice Advisories at
www.immigrantdefenseproject.org.
8
Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000); Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009)
(possession of paraphernalia is a deportable drug offense even where specific controlled
substance not ID’d on the record); see also Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA
2009) (suggests same result for being in a place where drugs are used).
9 Matter of Martinez-Espinoza, supra (comes within “30 grams marijuana” benefit if evidence
shows use was for small amount of marijuana). This also should cover hashish.
10 Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000) (paraphernalia); Nunez-Reyes, supra
(under the influence, overruling Jimenez-Rice v. Holder, 597 F.3d 952 (9th Cir. 2010)).
11 Ariz. Rev. Stat. §13-1002, a “generic” solicitation offense not linked to a specific crime, is not
a deportable drug offense. Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9 th Cir. 1997). In
contrast, “specific” solicitation to commit a drug offense such as under Calif. H&S § 11352(a)
will be held a deportable drug offense. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009).
The court opined that Calif. P.C. § 653f(d) is “generic solicitation” and therefore should not be
treated as a deportable controlled substance offense. Ibid.
12 United States v. Rivera-Sanchez, 247 F.3d 905 (9 th Cir. 2001)(en banc) (Calif. H&S Code §
11352, 11360, 11379); Leyva-Licea v. INS, 187 F.3d 1147 (9 th Cir. 1999) (ARS §13-1002).
13 See 21 USC §841(b)(4), making this offense a misdemeanor (therefore not an aggravated
felony) and subject to the FFOA (the test for Lujan-Armendariz). See discussion at Defending
Immigrants in the Ninth Circuit, supra, at §3.6(C). Obtain a finding that a “small” amount of
marijuana was given away for free.
Criminal and Immigration Law 3-2