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)

BIA

CONTROLLED SUBSTANCES - DRUG OFFENSES NOT PUNISHED UNDER FEDERAL LAW MAY STILL TRIGGER INADMISSIBILITY
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) ("section 212(a)(2)(A)(i)(II) of the Act does not require that a State offense be punishable under Federal law in order to support a charge of inadmissibility. Section 212(a)(2)(A)(i)(II) does contain the parenthetical phrase "as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)," but this phrase modifies only its immediate antecedent (i.e., "controlled substance"), not the whole text of the section."), following Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008).

Third Circuit

CONTROLLED SUBSTANCES " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a controlled substances violation for purposes of triggering deportation under INA 237(a)(2)(B)(i)), 8 U.S.C. 1227(a)(2)(B)(i).

Ninth Circuit

DRUG TRAFFICKING - TRANSPORTATION DOES NOT CONSTITUTE DRUG TRAFFICKING CONVICTION
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. Aug. 1, 2006) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code 11379(a), did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal reentry sentence under USSG 2L1.2(b)(1)(B), because transportation can be committed for personal use only, and there is no commercial element to the conviction), following United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004), and United States v. Rivera-Sanchez, 247 F.3d 905, 908-909 (9th Cir. 2001).

Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.

SAFE HAVENS - GENERAL SAFE HAVENS - CONVICTION-BASED GROUNDS OF DEPORTATION
Immigration counsel can argue that a person convicted of aiding and abetting the commission of a deportable offense is not deportable unless the definition of aiding and abetting, under the law of the jurisdiction of conviction, is coextensive with the federal definition of aiding and abetting. For example, in California, a person can be convicted of aiding and abetting on the basis of mere encouragement, even if no actual assistance is provided. This form of aiding a theft offense has been held insufficient to constitute a theft offense aggravated felony. United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). This same argument could be used to argue that a conviction of aiding and abetting any other deportable offense - a firearms conviction, crime of moral turpitude, domestic violence conviction, or controlled substances conviction - does not fall within the ground of deportation. Criminal defense counsel, however, should assume that a conviction of aiding a deportable offense also constitutes a deportable offense and avoid such a conviction if possible.

Other

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))