In many states, the controlled substances schedules prohibit some drugs that are not on the federal controlled substances lists mentioned on the federal lists.[494]  Both parts of the aggravated felony drug trafficking category apply only to drugs on the federal list.  If the record of conviction of a state drug offense specifically identifies a drug that is not on the federal list, that conviction cannot constitute an aggravated felony drug trafficking conviction under either part of this category.  Similarly, if the record of conviction of a state drug offense does not identify the particular substance, that conviction cannot constitute an aggravated felony drug trafficking conviction under either part of this category because the immigration authorities cannot prove unambiguously that the drug was a federally listed substance.  See § 9.3, infra.

[494] 21 U.S.C. § 802.

CONTROLLED SUBSTANCES - UNLISTED DRUGS
Because the Arizona drug schedules contain two substances that are no longer forbidden under federal law, an Arizona drug conviction that does not identify the particular controlled substances cannot trigger removal where the government bears the burden of persuasion. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007). While the BIA theoretically could revisit its decision in Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965), the Ninth Circuit relied on the plain meaning of the statute to reach its decision in Ruiz-Vidal. That the circuit expressly reached a decision because of the plain meaning of the statute precludes the BIA from changing its conclusion under the Brand X doctrine, because there is no ambiguity allowing it to interpret the statute and requiring deference by the circuit court of appeal. The Arizona controlled substances schedule includes two drugs, benzylfentanyl and thenyfentanyl, that are only listed on the federal schedule under the emergency temporary provision, which allows the government to add a substance in order to "avoid an imminent hazard to the public safety." This temporary provision is only valid for one year, and can be extended for six months, but then automatically expires. Benzylfentanyl and thenyfentanyl were both designated under this emergency temporary provision in 1985, so their listing automatically expired in 1986-1987, yet they still appear on the federal schedule as temporary designees. The issue than arises whether the Arizona definition of "narcotic drug" includes the two substances, benzylfentanyl and thenyfentanyl, that are not on the federal schedules published pursuant to the Controlled Substances Act, 21 U.S.C. 801, 812. In Morales-Trejo v. Holder, 340 Fed. Appx. 398, 399 n.1 (9th Cir. 2009), the Ninth Circuit acknowledged that the Arizona controlled substances list was not coextensive with the federal list because those two drugs are no longer federally controlled. See also United States v. Madera, 521 F. Supp. 149, 155 n.2 (D.Conn 2007). The statutory plain meaning argument is very strong. The controlled substances grounds of deportation and inadmissability, and the drug trafficking aggravated felony definition, all require the controlled substance to fall within the federal controlled substance definition. The statutes do not apply if the substance was "once defined" or "has ever been defined," as a federal controlled substance, which would have been easy enough for Congress to say if that is what Congress meant. The statutes can only be read to require that a substance must currently be listed in the federal schedules to currently qualify as a controlled substance under the immigration laws. Congress must give a noncitizen notice of what conduct will trigger deportation. See Jordan v. De George, 341 U.S. 223 (1951) (applying void-for-vagueness doctrine to ground of deportability). Thanks to Kara Hartzler and Dan Kesselbrenner.

Ninth Circuit

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (California conviction for violation of Health & Safety Code 11351, possession of a controlled substance for sale, is not categorically a drug trafficking offense for illegal re-entry sentencing purposes, because it is possible to be convicted under this statute for possession of a substances not listed on the federal controlled substances schedule; charging language made clear that offense involved a controlled substance, applying the modified categorical analysis), agreeing with United States v. Sanchez"Garcia, 642 F.3d 658, 661"62 (8th Cir. 2011). NOTE: Although refusing to follow similar cases in the immigration context, the Ninth Circuit found that under the sentencing guidelines, the term "controlled substance" also only refers to substances listed in the Federal schedules.

CONTROLLED SUBSTANCES - PAULUS - RELIEF
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (California statute proscribing possession of certain controlled substances, Health & Safety Code 11350, proscribes more substances than the disqualifying offense, so the court presumes the statute is categorically overbroad with respect to the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and cannot categorically disqualify the respondent from eligibility for cancellation of removal); see Suazo Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir. 2008).

CONTROLLED SUBSTANCES - PAULUS - INADMISSIBILITY
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (testimony before IJ that conviction involved a federally listed controlled substance sufficient to establish inadmissibility under INA 212(a)(2)(A)(i)(II), admitting commission of a controlled substances offense).

NOTE: This decision was not well considered. The court did not consider the effect of Matter of Winter, 12 I. & N. Dec. 638, 642 (BIA 1967, 1968) ("the plea to an indictment or complaint is so much an integral part of the entire criminal proceeding that it cannot be isolated from the final result of that proceeding, and given more force or finality than that result"), and related cases. The court also did not address the issue of whether the "admission" was properly taken by the Immigration Judge. See Matter of K, 7 I. & N. Dec. 594, 597 (BIA 1957).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION -IDENTIFICATION OF DRUG
Ruiz-Vidal v. Gonzales, ___ F.3d ___, 2007 WL 113940 (9th Cir. Jan. 18, 2007) (DHS failed to establish unequivocally that the particular substance noncitizen had been convicted in state court of possessing in 2003 was a controlled substance as defined in section 102 of the Controlled Substances Act, for purposes of that conviction serving as a predicate offense for removal).

CONTROLLED SUBSTANCES - SUBSTANCES NOT ON FEDERAL LIST
Ruiz-Vidal v. Gonzales, __ F.3d __ (9th Cir. Jan. 18, 2007) (substances controlled under California, but not Federal law include: apomorphine, androisoxazole, bolandiol, boldenone, oxymestrone, norbolethone, stanozolol, stebnolone).

Eleventh Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO SELL
United States v. Garza-Mendez, __ F.3d __ (11th Cir. Nov. 15, 2013) (Florida conviction for possession of cannabis with intent to sell or deliver, in violation of Fla. Stat. 893.13(a)(1)(2), is not a drug trafficking aggravated felony since the Florida statute does not require, as an element, proof that the defendant had knowledge of the nature of the controlled substance).

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO DELIVER CANNABIS
Donawa v. U.S. Atty Gen., ___ F.3d ___ (11th Cir. Nov. 8, 2013) (Florida conviction under Fla. Stat. 813.13(1)(a)(2), possession with intent to sell or deliver a controlled substance (cannabis), is not categorically an aggravated felony, because the Florida statute is missing any intent element, since Floridas unique statute presumes guilty intent [innocence is an affirmative defense]).

CONTROLLED SUBSTANCES " PAULUS DEFENSE " GEORGIA
Georgias schedules of controlled substances appear to be broader than the federal schedules as Georgias covers Dextromorphan, which is no longer covered by the federal schedules. O.C.G.A. 16-13-25. Thanks to Sejal Zota.

Other

CAL CRIM DEF " CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE DEFENSE " PRACTICE ADVISORY
Health & Safety Code 11350-11352. Formerly, these offenses covered certain substances that were not on the federal list, and these statutes were therefore divisible for purposes of removal and eligibility for relief under the strict standards of Moncrieffe and Descamps. For example, the government conceded in Esquivel-Garcia v. Holder, 593 F. 3d 1025 (9th Cir. 2010) that 11350 was divisible, but the conviction in that case occurred in 1989 when schedule II at HS 11055(b) (referenced by 11350) still included apomorphine, which is specifically excluded from the federal CSA. See 21 CFR 1308.12(b)(1). However, apomorphine no longer appears on the California schedules. Likewise, Matter of Paulus relied on the fact that peyote is prohibited under California law, but was not a federal controlled substance at the time. Peyote now is on the federal schedule I. It is not clear whether any other controlled substances are on the California lists for these offenses, but not on the federal lists. Acetafentanyl is also an analogue to a federally controlled substance and there is a catch all in the CSA for analogues. There is a good argument that the burden is on the government to establish every fact necessary for deportation, and the government must therefore establish that every drug on the 11350 list is also on the federal list before the offense categorically triggers deportation. N. Tooby & K. Brady, California Criminal Defense of Immigrants 21.31 (2014). There is another problem with this defense against removal. The unspecified drug defense would not be successful in immigration court, if the immigration judge required a showing of "realistic probability" of prosecution in California as to the unlisted drug. Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014). There is a strong argument that Ferreira is bad law, and should not be followed, or should be rejected by the Ninth Circuit. Matter of Chairez-Castrejon ,26 I. & N. Dec. 349 (BIA 2014). See also National Immigration Project of the National Lawyers Guild and Immigration Defense Project, Practice Advisory, The Realistic Probability Standard: Fighting Government Efforts To Use It To Undermine The Categorical Approach (Nov. 5, 2014) http://nationalimmigrationproject.org/legalresources/practice_advisories/cd_pa_realistic_probability_11-5-2014.pdf. If the IJ does require a showing of realistic probability of prosecution as to the specific unlisted drug, however, counsel have been unable to come up with a sample prosecution showing offenses involving the drug are in fact prosecuted in California. It is therefore far safer at present to seek a plea to another offense that does not trigger removal, such as accessory after the fact to a drug offense, under Penal Code 32, which is not considered a drug offense or a drug-trafficking aggravated felony. Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997). For other possible safer dispositions, see N. Tooby & K. Brady, California Criminal Defense of Immigrants 8.17-8.31 (2014). Health & Safety Code 11377-11379. These offenses certain substances that are not on the federal list, and these statutes are therefore divisible for purposes of removal and eligibility for relief under the strict standards of Moncrieffe and Descamps. Coronado v. Holder, 759 F. 3d 977 (9th Cir. 2014). Two federally unlisted drugs, prohibited by Health & Safety Code 11377-11379 for which proof of prosecution exists are khat, prohibited under Health & Safety Code 11055(d)(2), and chorioinic gonadatropin, prohibited by Health & Safety Code 11056(f). There may be more. Therefore, Ferreira does not prevent these statutes from being considered divisible.

CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).

AGGRAVATED FELONY - DRUG TRAFFICKING - IDENTIFICATION OF DRUG CONTROLLED SUBSTANCES - IDENTIFICATION OF DRUG
More Drugs Apparently Not Listed on Federal Schedules: 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)). Thanks to Lisa Weissman-Ward.

CONTROLLED SUBSTANCES - FEDERAL LIST - REGULATORY AUTHORITY TO ADD CONTOLLED SUBSTANCES
21 U.S.C. 812 delegates the authority to add, transfer or remove drugs on the five original schedules established by Congress, to the Attorney General and, "pursuant to Executive Order 1172," to the DEA. This delegation of authority was apparently upheld in United States v Davis 564 F.2d 840 (9th Cir 1977), cert. den. 434 U.S. 1015, 54 L.Ed. 760, 98 S.Ct. 733 (1977). Thanks to Jonathan Moore.