Safe Havens

For nearly all grounds of deportation, there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as aiding and abetting, accessory after the fact, misprision of a felony, solicitation, and other non-substantive offenses.  See § § 7.8-7.13, supra.

            This ground of deportation expressly includes attempt and conspiracy, but does not mention any other non-substantive offenses.  Therefore, the argument mentioned above can be made with respect to any unlisted non-substantive offense.

            On the other hand, this ground of deportation includes any offense “relating to a [federally listed] controlled substance . . . .” [1082]  The BIA and federal courts have sometimes seized on this “relating to” language to hold that certain non-substantive offenses are offenses “relating to” a controlled substance.  However, if “relating to” includes attempt and conspiracy, that would render meaningless Congress’ express inclusion of attempt and conspiracy in this deportation ground.  Therefore, it does not include any other non-substantive offense.

            The BIA has held that “facilitation” of sale of a controlled substance constitutes a deportable conviction of violating a law relating to a controlled substance.[1083]  On the other hand, the CMT ground of inadmissibility specifically states that “attempt” and “conspiracy” are included, but does not mention “facilitation.”  This gives rise to the argument that “facilitation” is not included.[1084]

            Similarly, the Fifth Circuit has held that a conviction of solicitation of transportation of marijuana is a conviction relating to a controlled substance.[1085]

            The discussion of non-substantive offenses therefore merges with the question of when a conviction is “relating to” a controlled substance.  See § 7.142, infra.  See § § 7.7-7.13, supra, concerning non-substantive aggravated felonies; Appendix H, infra, concerning other grounds of deportation.

[1082] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i).

[1083] Matter of Del Risco, 20 I. & N. Dec. 109 (BIA 1989) (conviction of facilitation of the unlawful sale of cocaine renders a noncitizen deportable on account of a conviction of violating a law relating to a controlled substance).

[1084] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense did not constitute a drug-related conviction)).

[1085] Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (state conviction of felony solicitation to transport marijuana for sale is conviction “relating to” a controlled substance for deportation purposes, depriving court of appeals of jurisdiction over petition for review challenging removal order), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992)