Criminal Defense of Immigrants
§ 21.22 (B)
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(B) Aggravated Felony. The aggravated felony drug trafficking category requires that the offense either involve trafficking or be a felony punishable under the federal controlled substances act. Simple possession of paraphernalia is not an aggravated felony because it is not punishable under federal law, and does not involve trafficking. However, federal law does prohibit sale of paraphernalia, which means that a federal or state conviction for sale of paraphernalia can be considered an aggravated felony.
 See § 19.56, supra.
 21 U.S.C. § 863.
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).
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.
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).