Criminal Defense of Immigrants

(B)  Non-Substantive Offenses.  In the context of non-substantive offenses, the Ninth Circuit has limited the “related to” language “where to read it broadly would render meaningless other words in the statutory language.”[414]  To read the “related to” language in the definition of offenses relating to the controlled substances grounds,[415] for example, to include unlisted unsubstantive offenses would render meaningless the “conspiracy or attempt” language applicable to those grounds, since conspiracy or attempt to commit a controlled substances offense would certainly be “related to” the controlled substance offense as well.  If the generic offenses of conspiracy and attempt were automatically included as offenses “related to” a controlled substance offense, there would have been no need for Congress specifically to add the “attempt or conspiracy” language to those grounds.

                The Sixth Circuit, in the context of a misprision of a felony conviction, has held that a criminal statute that “does not by its language indicate [that] it was contemplated to be” a controlled substance law, and historically has constituted a “criminal offense separate and distinct from the [underlying] felony” is not a law “relating to” a controlled substance. [416]

                The Fifth Circuit, however, has held that the non-substantive offense of solicitation is “related to” a controlled substances offense.  Distinguishing misprision of a felony, the court found that, “[w]hile both solicitation and misprision relate to an underlying felony, misprision deals with the concealment of a felony, whereas solicitation is undertaken with the specific intent to promote or facilitate the commission of a felony.”[417]  The BIA has come to the same conclusion with regard to solicitation and facilitation of a drug offense.[418]

[414] Luu-Le v. INS, 224 F.3d 911, 916 (9th Cir. 2000), citing Leyva-Licea, supra, and Coronado-Durazo, supra.

[415] INA § § 212(a)(2)(A)(i)(II), 237(a)(2)(B), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), 237(a)(2)(B).

[416] Castaneda De Esper v. INS, 557 F.2d 79, 83 (6th Cir. 1977) (misprision of a felony is not “related to” a controlled substance offense).

[417] Peters v. Ashcroft, 383 F.3d 302, 307 n. 4 (5th Cir. Aug 27, 2004) (solicitation to transport a controlled substance is an offense “related to” a controlled substance).

[418] Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime “relating to” a controlled substance); 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).