(C)  “Reason to Believe.”  Being under the influence does not have an element of trafficking, and therefore does not give the DHS reason to believe the noncitizen is inadmissible under this ground.  Remember, however, that this is a conduct based ground, and the noncitizen may be inadmissible if s/he in fact engaged in drug trafficking.[174]

[174] See § 21.6, supra.

BIA

CRIME OF MORAL TURPITUDE - ASSAULT - DOMESTIC
Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007) (Virginia conviction of assault and battery on a family or household member in violation of Virginia Code 18.2-57.2 is not necessarily a crime involving moral turpitude), following Matter of Sanudo, 23 I. & N. Dec. 968, 970-71 (BIA 2006).

Ninth Circuit

CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE IMMIGRATION CONSEQUENCES
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. 3607).

CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " RETROACTIVITY
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (holding retroactive to all cases not yet final the new rule that California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010)(California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. 3607).

Other

CONTROLLED SUBSTANCES " PRACTICE ADVISORY " ARGUMENT DUI DRUGS IS NOT A CONTROLLED SUBSTANCES OFFENSE SINCE THE CONNECTION BETWEEN THE OFFENSE AND CONTROLLED SUBSTANCES IS TOO ATTENUATED
Counsel can argue that the DUI offense is not a law relating to a controlled substance, under either INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), because this offense punishes driving while impaired by any substance whatever " so the law as a whole relates to driving, and is not sufficiently related to controlled substances. The Washington DUI statute prohibits driving under the influence of intoxicating liquor, marijuana, or any drug. Any drug is much broader than a controlled substance, and includes any prescription drug or over-the-counter medicine. The same is true in California. See Vehicle Code 312. The Third Circuit stated: Though we must interpret the phrase relating to a controlled substance broadly, that phrase must have limits, lest it be bent beyond all logical meaning. [ ] We believe that bringing the FDCA's wholesale distribution provisions within the scope of that phrase would extend it beyond its breaking point for two related reasons. First, the connection between 331(t), 353(e)(2)(A), and illicit controlled substance-related activity, is too attenuated. Second, 331(t) and 353(e)(2)(A) criminalize a substantial swath of conduct with no nexus to controlled substances as defined in 21 U.S.C. 802. In this case there is undeniably a connection [. ] [T]he FDCA prohibits the unlicensed wholesale distribution of prescription drugs, the CSA in turn criminalizes the unauthorized distribution of controlled substances, and some prescription drugs are also controlled substances. But that nexus, though simply stated, is not at all evident from the face of 331(t) and 353(e) and only emerges after a journey through other laws, regulations, and governmental publications. To repeat, 331(t) and 353(e) do not use the term controlled substance nor do they list specific prescription drugs that are in fact controlled substances. To see the connection between prescription drugs and controlled substances, we must rummage through the 400"plus page Prescription Drug Product List [ ] Even if we complete this odyssey, the fruits of our labor are for naught. It is inconsequential under 331(t) and 353(e)(2)(A) if the prescription drugs at issue are also controlled substances (as defined in section 802 of Title 21). Thus, the relationship between 331(t) and353(e)(2)(A) and controlled substances is a mere coincidence devoid of any legal significance under the FDCA. Moreover, the FDCA wholesale distribution provisions, which (to repeat) define a single offense and not distinct and separate offenses, prohibit a wide range of behavior completely unconnected to controlled substances. The statutes are blind to whether a particular prosecution involves highly addictive prescription painkillers, or relatively benign prescription shampoos, topical creams, or eye drops. In this regard, we believe 331(t) and 353(e)(2)(A) to be analogous to a law criminalizing the receipt of stolen property. In Pennsylvania, for example, a person may be convicted of theft if he intentionally receives property knowing that it has been stolen. See, e.g., 18 Pa.C.S.A. 3925(a). Whether that stolen property includes Oxycontin or cotton candy is inconsequential under the statute. Like 331(t) and 353(e)(2)(A), the Pennsylvania receipt-of-stolen-property statute reaches countless activities that are completely unconnected to controlled substances. Classifying such a law as one relating to a controlled substance would stretch too far the bounds of the phrase relating to. Borrome v. Attorney General of U.S., 687 F.3d 150, 162 (3d Cir.2012). This same argument could be reframed to apply to a DUI statute that does not mention controlled substances. However, a conviction of this offense may well be charged as a conviction relating to a controlled substance, and upheld by an IJ. The BIA may say this offense was distinguishable from and worse than a conviction of simple simple possession, if the drug were the drug marijuana. Thanks to Jonathan Moore.