(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.

BIA

CONTROLLED SUBSTANCES - POSSESSION OR USE OF DRUG PARAPHERNALIA - INADMISSIBILITY
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (Minnesota conviction for possession of paraphernalia knowingly or intentionally for use with a controlled substance, under Minnesota Statutes 152.092, is an offense "related to" a controlled substance under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)), following Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Escobar Barraza v. Mukasey, 519 F.3d 388, 389-90 (7th Cir. 2008); Luu-Le v. INS, 224 F.3d 911, 914-16 (9th Cir. 2000).

Third Circuit

CONTROLLED SUBSTANCES OFFENSES " POSSESSION OF PARAPHERNALIA " CONVICTION RELATING TO A CONTROLLED SUBSTANCE
Syblis v. Attorney General of U.S., ___ F.3d ___, ___, 2014 WL 4056557 (3d Cir. Aug. 18, 2014) (Virginia conviction of possession of drug paraphernalia, in violation of Va.Code Ann. 54.1"3466, constituted a conviction relating to a controlled substance, for immigration purposes: we are satisfied that Va.Code Ann. 54 .1"3466 is sufficiently connected to controlled substances so as to be related to controlled substances for purposes of 1182(a)(2)(A)(i)(II). See Luu"Le, 224 F.3d at 915 (Although the definition of drug ... does not map perfectly the definition of controlled substance ... in our opinion [the statute] is clearly a law relating to a controlled substance.).).

CONTROLLED SUBSTANCES OFFENSES " POSSESSION OF PARAPHERNALIA " SUBSTANCE INVOLVED
Rojas v. Attorney General of U.S., 728 F.3d 203 (3d Cir. Aug. 23, 2013) (en banc) (where DHS bears burden, government must show that the state conviction of possession of drug paraphernalia involved or was related to a federally controlled substance). Note: This well-reasoned decision provides strong support for asking the Ninth Circuit to reexamine Luu-Le v. INS, 224 F.3d 911 (9th Cir 2000), which held that a conviction of possession of paraphernalia need not involve a federally-listed controlled substance to warrant deportation. As the Third Circuit in Rojas stated: Thus, the most straightforward reading of 1227(a)(2)(B)(i) is that to establish removability the Department must show that a controlled substance included in the definition of substances in section 802 of Title 21 was involved in the crime of conviction at issue. Parsing the different clauses with the aid of the last antecedent canon reveals that, as a whole, 1227(a)(2)(B)(i) requires the Department to establish that the individual it seeks to remove (1) is an alien (2) who at any time after entering the country violated or attempted to violate a law relating to a controlled substance and (3) that the controlled substance is defined as such by federal law. Points (1) and (2) are not at issue in this case. A simple example further illustrates why this reading of the statute is correct. Section 802(6) of Title 21 states that [t]he term controlled substance means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco.... Putting the two provisions together, the INA effectively renders removable noncitizens convicted under laws relating to a controlled substance (a drug or other substance ... included in schedule I, II, III, IV, or V ...[,] not includ[ing] spirits, wine, malt beverages, or tobacco). Suppose, then, that Pennsylvania"which has its own controlled-substances schedules to which it is free to add substances not in the federal lists"chose to include tobacco in its schedules, and that Rojas was convicted of possessing tobacco paraphernalia. Given the express exclusion of tobacco from the federal list of controlled substances, it would be a complete anomaly to then place Rojas in removal proceedings for possessing tobacco paraphernalia. Indeed, such a result would violate the cardinal principle that we do not cripple statutes by rendering words therein superfluous, as the Department's reading would have us do to the as defined parenthetical. See, e.g., *210 Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (It is our duty to give effect, if possible, to every clause and word of a statute.) (quoting United States v. Menasche, 348 U.S. 528, 538"39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted)); Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997) (We strive to avoid a result that would render statutory language superfluous, meaningless, or irrelevant.). Id. at 209-210.

Ninth Circuit

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

CONTROLLED SUBSTANCE " POSSESSION OF PARAPHERNALIA
United States v. Oseguera-Madrigal, 700 F.3d 1196 (9th Cir. Nov. 19, 2012) (Washington conviction for use of drug paraphernalia, in violation of Wash. Rev.Code 69.50.412, constituted a conviction relating to a controlled substance, under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), for inadmissibility purposes); following Luu"Le v. INS, 224 F.3d 911, 914-16 (9th Cir. 2000) (Arizona's statute criminalizing the possession of drug paraphernalia, Ariz.Rev.Stat. 13"3415(A) is, by its plain language, an offense relating to a controlled substance for removal purposes); Bermudez v. Holder, 586 F.3d 1167, 1168-69 (9th Cir. 2009) (the materially identical drug paraphernalia statute in Hawaii, Haw.Rev.Stat. 329"43.5(a), was similarly relating to a controlled substance.).

CONTROLLED SUBSTANCES - INADMISSIBILITY - POSSESSION OF DRUG PARAPHERNALIA
Bermudez v. Holder, 586 F.3d 1167 (9th Cir. Nov. 10, 2009) (per curiam) (Hawaii conviction of possession of "a pipe and/or packets" that are used for and with the drug methamphetamine, in violation of Haw.Rev.Stat. 329-43.5(a) (2009), is a violation of a law "relating to a controlled substance," rendering respondent inadmissible under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), rendering respondent in eligible for cancellation of removal), following Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000).