Safe Havens

 

(E)  How to Make A Drug List Comparison.  The following is an easy (though somewhat time-consuming) method for finding out what drugs in a specific state are not listed in the federal controlled substances schedules.

 

            At http://www.CriminalAndImmigrationLaw.com, an alphabetical list of the substances contained in the federal schedules (minus the salts, isomers, etc., of the various listed drugs) has been posted that is current through April 26, 2004. 

 

            To make an alphabetical proscribed drug list of the specific substances controlled in a specific state, for comparison purposes:

 

            1.  Locate the most recent state drug schedule in an electronic format, and paste this list into a word-processor document. 

 

            2.  Delete all the superfluous language, section headings, etc. so that only a list of the individual drugs remains.  Make sure to indicate the schedule in which each drug was listed.  Give each drug with multiple names a number, and give that same number to each alternative name (or alias) for the same drug.

            3.  Use the “sort” function of the word processor program to alphabetize the list. 

 

To make a drug by drug comparison between the California and federal schedules:

 

            4.  Paste the federal alphabetical list into the document that contains the state proscribed drug list.

 

            5.  Highlight the state list within the word processor document, and then sort both lists into a single alphabetical listing (with the state drugs still highlighted). 

 

            6.  Going down the list, use the strikeout function to mark any highlighted/nonhighlighted drug pairs.  These pairs each represent a specific controlled substance that appears on both the state and the federal lists.  Strike these pairs from the list, because we are looking for drugs that are on the state, but not the federal, list.

 

            7.  Return to the top of the list and use the “find” function to find any AKAs of the drugs stricken.  Strike the AKAs. 

 

            8.  After striking all drugs that are listed on both lists, the substances that remain are those on the state list but which do not appear on the federal controlled substances schedules.  A conviction of an offense involving a state drug which is not on the federal list will not trigger deportation.  Also, because the state schedules list more drugs than the federal schedule, a conviction of violating state controlled substances offenses, that does not identify the specific substance involved, does not trigger deportation.

 

For example, this method produced 33 substances which are listed on the California lists, but which are not listed on the federal schedules.[1]

            The federal drug schedules are kept and updated by regulation.[2]  It appears that the Drug Enforcement Agency updates the drug schedules on a piecemeal (rather than annual) basis, so the list is constantly changing.  The drug schedules in a particular state may be maintained either by regulation or by statute (as in California).  If by statute, the schedules may only be updated annually.

            If the Gousse reasoning is applied in the particular jurisdiction in question, and the noncitizen is charged as an aggravated felon, the federal schedules to apply in making the comparison are those that existed at the time the immigration proceedings commenced, while the state schedules to apply are those that existed at the time of the offense.  If the client is not charged as an aggravated felon, the key comparison is between both drug schedules as they existed at the time of the offense.

 

[1] 1-(1-phenylcyclohexyl) morpholine; 1-(1-phenylcyclohexyl) piperidine;17-methyltestosterone (13); 4-hydroxy-19-nortestosterone; acetylfentanyl; androisoxazole; androstenediol; bolandiol; bolasterone; boldenone; clostebol; dihydromesterone; ethylestrenol; fluoxymesterone; formyldienolone; mesterolone; Methandriol; methandrostenolone; methenolone; methyltrienolone; n-[1- phenethyl-4-piperidinyl] acetanilide; n-[1-[2-(2-thienyl)ethyl]-4-piperidinyl] acetanilide; n-ethyl, n-methylamphetamine; n-ethylmethamphetamine; norbolethone; norethandrolone; normethandrolone; oxandrolone; oxymestrone; pcm; pcp; phencyclidines; quinbolone; stanolone; stanozolol; stenbolone; testosterone; thiophene analog of acetylfentanyl; trenbolone.

[2] 21 C.F.R. § § 1308.11, et seq.  Updates to the schedules are tracked on the following site:

http://www.deadiversion.usdoj.gov/schedules/actions/90_actions.htm