Criminal Defense of Immigrants


§ 21.13 (D)

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(D)  Comparison with Inadmissibility Ground. A noncitizen is also inadmissible for conviction of a similarly defined offense “relating to a controlled substance.”  The inadmissibility ground is different from the deportation ground in two ways.  First, there is no requirement that the conviction take place after admission to the United States.  Second, there is no automatic exception for thirty grams of marijuana, although such a conviction may be waived under INA § 212(h).[110]

[110] See § 24.29, infra.




Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (for purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for ones own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception).
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concluded that the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (question whether a noncitizen committed a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), to qualify for this exception to the controlled substances deportation ground, was a circumstance-specific inquiry, that is, an inquiry into the nature of the aliens conduct. It does not suggest a focus on the formal elements of generic offenses.); citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009).
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).
Matter of Zorilla-Vidal, 24 I. & N. Dec. 768 (BIA Mar. 20, 2009) (outside the Ninth Circuit, a conviction for criminal solicitation under a States general purpose solicitation statute is a conviction for a violation of a law "relating to a controlled substance" under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i)).
Matter of Zorilla-Vidal, 24 I. & N. Dec. 768 (BIA Mar. 20, 2009) (Florida conviction of criminal solicitation, in violation of Florida Statutes 777.04(2), based on a plea of no contest to a charge of soliciting the delivery of cocaine, in violation of Florida Statutes 893.13(1)(a)(1), constituted a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), for removal purposes, outside the Ninth Circuit), reaffirming Matter of Beltran, 20 I&N Dec. 521 (BIA 1992); following Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) only in the Ninth Circuit. NOTE: Coronado-Durazo v. INS found that the statutory language of INA 237(a)(2)(B)(i) was clear, and therefore no Chevron deference was due, and Brand-X cannot be used to overrule Coronado-Durazo.

Eighth Circuit

Article, Breadth and Narrowness of the Phrase "Relating to" in Removal Grounds

     In United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008), the Eighth Circuit held that Iowa conviction for possession of false document required to legally enter, remain, or work in this country with intent to perpetrate fraud or with knowledge that possession was facilitating fraud, in violation of Iowa Code 715A.2(1)(d) and 715A.2(2)(a)(4), was an "offense related to forgery" aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), for purposes of imposing an eight-level sentencing enhancement under USSG 2L1.2(b)(1)(C) for illegal reentry after deportation. In doing so, it stated:

The words "relating to" make it apparent that many crimes that are not specifically listed in 8 U.S.C. 1101(a)(43)(R) will constitute an aggravated felony as long as they are related to the crimes listed."), citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); Richards v. Ashcroft, 400 F.3d 125, 129 (2d Cir. 2005). Id. at ___.

     The phrase "relating to" occurs in a number of grounds of removal, including in many aggravated felony definitions. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 4.37 n.349 (2006). Most of the time, it occurs within parentheses. For example, in the ransom offense aggravated felony definition, the statute lists "an offense described in [18 U.S.C. 875, etc.] (relating to the demand for or receipt of ransom". INA 101(a)(43)(H), 8 U.S.C. 1101(a)(43)(H). The majority rule, however, is that language in parentheticals was included by Congress as a handy label, rather than as operative language limiting the meaning of the aggravated felony definition. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 4.38 (2006). If the parenthetical language cannot restrict the scope of the definition, it cannot expand it. There is a strong argument, therefore, that the phrase "relating to" does not expand the sweep of those aggravated felony definitions included within parentheticals.

     If there is any reasonable doubt on this point, the rule of lenity or doctrine of strict construction in removal cases should require the court to come down in favor of the noncitizen. See 4.41, infra. See also Rosenberg, Benefit Of The Doubt: The Survival Of The Principle Of Narrow Construction And Its Current Applications, 8 BENDER'S IMMIGR. BULL. 1553 (2003).

     The only removal grounds, therefore, in which the argument that the phrase "relating to" expands the definition has force are those in which the phrase does not occur within parentheses. This includes both the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the controlled substances ground of deportation. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). It also includes the following aggravated felony definitions contained in INA 101(a)(43), 8 U.S.C. 1101(a)(43):

     (K) "an offense that - (i) relates to the owning, controlling, managing, or supervising of a prostitution business;"

     (Q) "an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;"

     (R) "an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;"

     (S) "an offense relating to obstruction of justice, perjury or suborniation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;" and

     (T) "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed . . . ."

     It is also possible to argue, in some cases, that the phrase "relating to" has limits if to interpret it broadly would render other language in the statute meaningless. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 367 (2006). In addition, some courts have found that a statute contained in a different area of the law does not "relate to" a controlled substance because it was not intended to address controlled substances offenses. See Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003). See also Castaneda de Esper v. INS, 557 F.2d 79, 83-84 (6th Cir. 1977) (false imprisonment not "related to" a controlled substance offense); Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) ("[W]hen a criminal statute does not by its language indicate [that] it was contemplated to be a narcotic law and historically has constituted a criminal offense separate and distinct from the [underlying] felony, such a statute is not a law relating to [a controlled substance].") (internal citations and quotations omitted).

Ninth Circuit

Alvarado v. Holder, ___ F.3d ___, 2014 WL 3608713 (9th Cir. Jul. 23, 2014) (Arizona conviction for attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), constituted a violation of state law relating to a controlled substance, for purposes of deportation, under the modified categorical analysis, where attachment to the plea agreement set the factual basis, which identified the controlled substance as methamphetamines). NOTE: The court found that the argument that Arizona attempt is broader than federal attempt was waived for failure to exhaust.
Guerrero-Silva v. Holder, ___ F.3d ___, 2010 WL 1225450 (9th Cir. Mar. 31, 2010) (California conviction of furnishing marijuana to minor 14-17 years old, in violation of Health & Safety Code 11361(b), qualifies as a controlled substance conviction triggering deportation under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), rejecting argument that it does not do so because it includes offering to commit certain offenses, i.e., solicitation, within its terms, because it includes only solicitation to commit a controlled substances offense); following Mielewczyk v. Holder, 575 F.3d 992, 998(9th Cir.2009).
Guerrero-Silva v. Holder, 599 F.3d 1090 (9th Cir. Mar. 31, 2010) (California conviction of furnish[ing], administer[ing], or giv[ing], or offer[ing] to furnish, administer, or give, marijuana to a minor, under California Health and Safety Code 11361(b), categorically qualifies as a deportable controlled substance offense under INA 237(a)(2)(B)(i), because offering or solicitation offenses qualify as offenses relating to a controlled substance), following Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009).
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.