(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).

BIA

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

Seventh Circuit

STATUTORY CONSTRUCTION - DESCRIBED IN
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete is arguing that defined in and described in are synonymous. We reject this argument, primarily because it renders the distinction between the terms described in and defined in meaningless. See United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). Also, it does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense's state law counterpart to be included within the definition of an aggravated felony. Indeed, many firearms offenses are not susceptible to being easily described in general terms, see, e.g., 18 U.S.C. 922(g)(4) (offense of possession of a firearm or ammunition by someone who has been adjudicated as a mental defective or who has been committed to a mental institution); while others are dependent on other provisions in a statutory scheme. See, e.g., 18 U.S.C. 922(o) (making it unlawful for a person to possess a "machinegun," where that term is defined elsewhere in the National Firearms Act). Congress could therefore rationally have decided to describe those offenses by reference to the statutory provision where they were located rather than conjuring up an awkward general descriptor, or having to recopy several parts of a statutory scheme.").

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

NATURE OF CONVICTION - "RELATING TO"
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) ("The phrase relating to, as defined by the Supreme Court, means to stand in some relation to; to have bearing or concern; to pertain; refer; to bring into association with or connection with. Morales v. Trans World Airlines, 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black's Law Dictionary 1128 (5th ed.1979)) (construing relating to in a different statutory context). We have construed relating to language broadly in the past, see Luu-Le v. INS, 224 F.3d 911, 915-16 (interpreting the phrase relating to a controlled substance in section 241(a)(2)(B)(i) of the Immigration and Nationality Act), and the Fifth, Eighth, and Tenth Circuits have done the same when interpreting this provision and the materially indistinguishable text of 2252, see Hubbard, 480 F.3d at 347 (We must assume that Congress chose the words relating to [in 2252A(b)(1) ] for a purpose.); United States v. Weis, 487 F.3d 1148, 1152 (8th Cir.2007) (construing relating to broadly in 2252); United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir.2005) (same).").