(A)  Paulus Rule.  In 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted of a violation of . . . any law or regulation relating to the illicit possession or traffic in narcotic drugs or marijuana . . . .”  In Matter of Paulus,[308] the BIA found that a noncitizen convicted of sale of an unidentified “narcotic”[309] did not fall within this ground of deportation because the INS could not prove that the “narcotic” at issue in the case was a “narcotic drug” listed under the federal drug schedules.

 

       At the time Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes, and the INS argued that a “generic” definition should be adopted that would have included whatever happened to be considered a “narcotic” in California or any other state.  The BIA rejected this argument on the basis of a California United States District Court decision that limited the term “narcotic drug”[310] to substances defined as a “narcotic drug” by federal law.[311]

 

Since then, Congress has specifically limited the definition of “controlled substances” to those substances defined as such by federal law.[312]  Congress has therefore adopted Paulus as a matter of law.  Where a noncitizen is charged as an aggravated felon on the basis of a state drug conviction, the government must therefore demonstrate by clear and convincing evidence that the substance that was the subject of the state criminal conviction is a substance listed in the federal drug schedules.[313]  There are also some substances that may be controlled under foreign law but not federal law, or not controlled at all.[314]  Where no particular controlled substance is identified in the state criminal record of conviction, the government cannot meet its burden unless it shows that every single drug listed in the state schedules is also included in the federal schedule.

[308] Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965).

[309] California Health & Safety Code § 11503.

[310] Former INA § 241(a)(11).

[311] See Mendoza-Rivera v. Del Guercio, 161 F.Supp. 473 (Cal. 1958), aff’d sub nom. Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir. 1959).

[312] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substances offense ground of inadmissibility); INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (controlled substances conviction deportation ground); INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (illicit drug trafficking aggravated felony definition).

[313] See INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[314] See Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. Jan. 31, 2005) (khat, a plant used as a traditional herbal stimulant in Africa, is not a controlled substance listed under federal law, and therefore noncitizen bringing khat into the United States could not be found inadmissible for having committed a controlled substances offense or for drug trafficking).

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.

Third Circuit

CONTROLLED SUBSTANCES OFFENSES " UNLISTED OFFENSES " VIRGINIA
Syblis v. Attorney General of U.S., ___ F.3d ___, ___, 2014 WL 4056557 (3d Cir. Aug. 18, 2014) (BIA acknowledged that Va.Code Ann. 54.1"3466 punished drug paraphernalia offenses related to substances not included within the CSA, such as those recognized by the official United States Pharmacopoeia National Formulary).

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.

CONTROLLED SUBSTANCES OFFENSES " IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. Huitron-Rocha, ___ F.3d ___, 2014 WL 5801404 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11352(a) is a divisible statute, so the modified categorical analysis can be used to examine the record of conviction to determine if the specific controlled substance involved in the case is identified and if so is on the federal list); Coronado v. Holder, 759 F.3d 977, 983"85 & n. 4 (9th Cir.2014) (California Health and Safety Code 11377(a), possession of a controlled substance, is a divisible statute, within the meaning of Descamps, because the statute contains a listing of alternative controlled substances and because California law confirms that the controlled substance is an essential element of the crime); United States v. De La Torre"Jimenez, No. 13"50438, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

CONTROLLED SUBSTANCES OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. De La Torre"Jimenez, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

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.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

CONTROLLED SUBSTANCES " MEANS V. ELEMENTS " PAULUS DEFENSE
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

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.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION OF EPHEDRINE WITH REASON TO BELIEVE IT WOULD BE USED TO MANUFACTURE METHAMPHETAMINE
Daas v. Holder, ___ F.3d ___, ___ (9th Cir. Aug. 24, 2010) (federal conviction of distributing listed chemicals (ephedrine and pseudoephedrine) with reasonable cause to believe they would be used to manufacture methamphetamine, in violation of 21 U.S.C. 841(c)(2), qualified as a aggravated felony drug trafficking crime, regardless of whether ephedrine and pseudoephedrine are controlled substances.); see Lopez-Jacuinde, 600 F.3d at 1217, and Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.2008).

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

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.