This ground has the following elements:

 

(1)  a conviction of an offense

(2)  after admission

(3)  of any state, federal, or foreign law

(4)  relating to

(5)  a controlled substance, as defined in 21 U.S.C. § 802. [1081]

 

If the government cannot prove by clear and convincing evidence that each of these elements exists, the noncitizen is not deportable under this ground.  See § 5.24, supra.

[1081] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i).

BIA

CONTROLLED SUBSTANCES " DEPORTATION " SINGLE OFFENSE EXCEPTION " CIRCUMSTANCE-SPECIFIC INQUIRY
Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (for purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for ones own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception).

CONTROLLED SUBSTANCES " DEPORTATION GROUND " SINGLE MARIJUANA OFFENSE EXCEPTION
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concluded that the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).

CONTROLLED SUBSTANCES " DEPORTATION GROUND " SINGLE OFFENSE EXCEPTION " CIRCUMSTANCE-SPECIFIC INQUIRY
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (question whether a noncitizen committed a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), to qualify for this exception to the controlled substances deportation ground, was a circumstance-specific inquiry, that is, an inquiry into the nature of the aliens conduct. It does not suggest a focus on the formal elements of generic offenses.); citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009).

CONTROLLED SUBSTANCE " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

CONTROLLED SUBSTANCE - SOLICITATION
Matter of Zorilla-Vidal, 24 I. & N. Dec. 768 (BIA Mar. 20, 2009) (outside the Ninth Circuit, a conviction for criminal solicitation under a States general purpose solicitation statute is a conviction for a violation of a law "relating to a controlled substance" under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i)).

CONTROLLED SUBSTANCE - SOLICITATION
Matter of Zorilla-Vidal, 24 I. & N. Dec. 768 (BIA Mar. 20, 2009) (Florida conviction of criminal solicitation, in violation of Florida Statutes 777.04(2), based on a plea of no contest to a charge of soliciting the delivery of cocaine, in violation of Florida Statutes 893.13(1)(a)(1), constituted a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), for removal purposes, outside the Ninth Circuit), reaffirming Matter of Beltran, 20 I&N Dec. 521 (BIA 1992); following Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) only in the Ninth Circuit. NOTE: Coronado-Durazo v. INS found that the statutory language of INA 237(a)(2)(B)(i) was clear, and therefore no Chevron deference was due, and Brand-X cannot be used to overrule Coronado-Durazo.

Fifth Circuit

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS
Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense). NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007). The Court also found that Moncada-Servellon was not due Chevron deference, as it was contrary to the INA.

Ninth Circuit

CONTROLLED SUBSTANCES OFFENSES " DELIVERY OF MARIJUANA TO A MINOR CONSTITUTES DEPORTABLE CONTROLLED SUBSTANCES OFFENSE
Guerrero-Silva v. Holder, 599 F.3d 1090 (9th Cir. Mar. 31, 2010) (California conviction of furnish[ing], administer[ing], or giv[ing], or offer[ing] to furnish, administer, or give, marijuana to a minor, under California Health and Safety Code 11361(b), categorically qualifies as a deportable controlled substance offense under INA 237(a)(2)(B)(i), because offering or solicitation offenses qualify as offenses relating to a controlled substance), following Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009).

CONTROLLED SUBSTANCES - SOLICITATION
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.

Tenth Circuit

DRUG TRAFFICKING - SIMPLE POSSESSION - POSSESSION OF 50-2000 POUNDS OF MARIJUANA
United States v. Herrera-Roldan, ___ F.3d ___, 2005 WL 1635366 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony "drug trafficking crime," as defined by 18 U.S.C. 924(c), and thus merited an 8-level adjustment under USSG 2L1.2(b)(1); however, the offense of simple possession [no matter what the amount] is not a "drug trafficking offense" under U.S.S.G. 2L1.2(b)(1)(B) [which would merit a 12-level adjustment], as there is no trafficking element to the offense).