(B)  Ninth Circuit Decision Undercutting Paulus.  Probably the most direct threat to the survival of the Paulus rule is the Ninth Circuit decision of Luu-Le v. INS.[315]  Luu-Le held that a conviction of possession of drug paraphernalia,[316] was a conviction “related to” a controlled substance.  The court found that since the Arizona statute listed “fourteen factors that a court shall consider . . . in determining whether an object is drug paraphernalia,” including intent to use, a conviction under the statute was clearly “related to” a controlled substances offense.[317] 

 

            In making this decision, the court also briefly addressed the problem that the possession of drug paraphernalia conviction was not related to any particular drug.  The Arizona statute defines “drug” for purposes of the paraphernalia statute as, “any narcotic drug, dangerous drug, marijuana or peyote.”[318]  Although noting that the definition of “controlled substance” was limited under the INA to the federal drug schedules, and that “the definition of ‘drug’ as used in section 13-3415 is not exactly coextensive with the definition  of ‘controlled substance’ as used in [the] INA,” the court found that the Arizona statute was “plainly intended to criminalize behavior involving the production or use of drugs – at least some of which are also covered by the federal schedules of controlled substances . . . .”[319]

 

            Although Luu-Le has been subsequently cited for the idea that possession of paraphernalia is “related to” a controlled substance, no case has yet cited Luu-Le as a challenge to the Paulus rule.[320]  However, there is clearly a danger of this happening in the future.  The Luu-Le court basically took a “close enough” position by failing to hold that a conviction under the Arizona paraphernalia statute could not qualify as an offense “related to” a controlled substance unless the record of conviction made clear that the paraphernalia was intended to be used with a federally controlled substance. 

 

This holding appears to violate the Paulus rule.  This holding also violates the well-established rule that where the government bears the burden of proving deportability, but the exact elements of the offense to which the noncitizen entered a plea are not clear from the record of conviction, the charge of deportability cannot be sustained, even if the noncitizen had, in fact, committed an offense that would sustain a ground of deportability.[321]

 

Luu-Le did not deal with a situation in which a noncitizen was convicted under a statute that required the involvement of some definite substance (i.e., possession or sale), where the drug was unidentified.  Since possession of paraphernalia hinges on the paraphernalia itself, rather than a controlled substance, there is room to distinguish Luu-Le from a straight Paulus situation.

 

Court decisions are not authority for propositions not considered therein.[322] Since Luu-Le did not deal directly with a drug conviction (but rather a conviction “related to” drugs), did not directly consider the Paulus decision or whether the decision should be given Chevron deference, and did not make clear who had the burden of proof, the case is arguably not the final word on the Paulus rule in the Ninth Circuit.  The Paulus rule is nearly 40 years old, and should not be deemed overruled by a cursory paragraph in a four-page decision that did not mention it.

 

[315] Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000).

[316] Arizona Criminal Code § 13-3415.

[317] Id. at 915.

[318] Arizona Criminal Code § 13-3415(F)(1).

[319] Luu-Le v. INS, 244 F.3d at 915.

[320] See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1135 (9th Cir. 2000) (applying Lujan-Armendarez v. INS, 222 F.3d 728 (9th Cir. 2000) to a conviction for possession of paraphernalia).

[321] See United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004) (“the issue is not whether [the] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the state statute] constitutes an aggravated felony”), quoting Taylor v. United States, 495 U.S. 575, 602 (1990); Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (opinion of Sotomayor, J.); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of Espinosa, 10 I. & N. Dec. 98, 100 (BIA 1962); Matter of N, 8 I. & N. Dec. 466 (BIA 1959).

[322] See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

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.