Generally, any offense “related to”[257] a controlled substance will be considered a controlled substances offense for removal purposes.[258]  Any controlled substances offense that involves trafficking or is punishable under the Federal Controlled Substances Act and is a felony[259] may be considered an aggravated felony.[260]  Any offense that involves trafficking will give the DHS “reason to believe,”[261] and any controlled substances offense involving an intent to commit most acts short of possession for personal use may be considered a crime of moral turpitude.[262]

 

                Counsel should make an independent analysis of the statute of conviction, the record of conviction, and the existing case law to determine whether any given offense will trigger removal and under what ground.[263]

[257] See § 16.36, supra, for discussion of “related to” language.

[258] See § § 21.4-21.5, 21.13, supra.

[259] See § 21.39, infra.

[260] See § § 19.55, supra, 21.12, supra.

[261] See § 21.6, supra.

[262] See § § 21.8-21.9, 21.14, supra.

[263] See Chapter 16, supra.

Seventh Circuit

Desai v. Mukasey, ___ F.3d ___, 2008 WL 818946 (7th Cir. Mar. 28, 2008) (Illinois conviction of Unlawful Delivery of a Look-Alike Substance, in violation of 720 ILCS 570/404(b), constitutes a conviction of an offense "relating to" a controlled substance, under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II): "This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did by distributing something that would lead one to believe it contained Psilocybin brings it into association with a federal controlled substance.").