Safe Havens

(C)  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.[14]  Luu-Le held that a violation of Arizona Criminal Code § 13-3415, possession of drug paraphernalia, 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.[15] 

                   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.”[16]  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 . . . .”[17]

            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.[18]  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 the 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.[19]

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.[20] 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.

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

[15] Id. at 915.

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

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

[18] 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).

[19] 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 United States v. Taylor, 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).

[20] See R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (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, 123 L.Ed.2d 172; 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).