Criminal Defense of Immigrants

(A)  Controlled Substance Offense.  The Ninth Circuit held in Luu-Le v. INS,[181]  that a conviction for possession of drug paraphernalia, under Arizona law,[182] constituted a conviction of an offense relating to a controlled substance.  The Arizona offense in that case was structured to criminalize the possession of drug paraphernalia only if that possession was accompanied by the use, or the intended use, of the paraphernalia for a drug-related purpose.  As the court noted:

In addition to subsections 13-3415(A) and 13-3415(F)(2), which respectively define the offense and the term “drug paraphernalia,” subsection 13-3415(E) lists fourteen factors that a court “shall consider, in addition to all other logically relevant factors,” in determining whether an object is drug paraphernalia. These factors include statements by the owner or person in control of the object, the proximity of the object to drugs, the existence of any drug residue on the object, direct or circumstantial evidence of the owner or user’s intent and knowledge, and the existence and scope of legitimate uses for the object in the community.[183]

However, not all paraphernalia statutes are so narrowly focused.  Under other state’s statutes, it may theoretically be possible to violate the statute upon merely possessing a marijuana pipe for esthetic purposes, or may merely be a regulatory offense related to medical licensing.[184]  If so, counsel can argue that under divisible statute[185] or minimum conduct[186] analysis, the offense of conviction is not “related to” a controlled substance.

[181] Luu-Le v. INS, 224 F.3d 911 (9th Cir 2000).

[182] Ariz. Rev. Stat § 13-3415, titled “Possession, Manufacture, Delivery and Advertisement of Drug Paraphernalia,” makes it unlawful for any person to “use, or to possess with intent to use, drug paraphernalia to plant, propagate … or otherwise introduce into the human body a drug in violation of this chapter.”  Ariz. Rev. Stat. § 13-3415(A) defines drug paraphernalia as: “all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating … or otherwise introducing into the human body a drug in violation of this chapter.”

[183] Luu-Le v. INS, 224 F.3d at 915.

[184] See, e.g., California Business & Professions Code § 4140 (“No person shall possess or have under his or her control any hypodermic needle or syringe except when acquired in accordance with this article.”).  The rest of the statute regulates licensing and sales of the syringes by medical distributors.  See, e.g., California Business & Professions Code § 4149, prohibiting a “nonresident distributor” from selling or distributing needles or syringes without a license.

[185] See § 16.9, supra.

[186] See § 16.8, supra.