Criminal Defense of Immigrants

(A)  Controlled Substance Offense.  The controlled substances grounds of removal[272] expressly include attempt and conspiracy, but do not mention any other non-substantive offenses.  Therefore, the argument mentioned above can be made with respect to any unlisted non-substantive offense.  The Ninth Circuit, for example, has found that offering to sell a controlled substance is a non-substantive solicitation offense, and because solicitation is not listed under the controlled substances grounds of removal, the offense offering to sell a controlled substance does not trigger removal under those grounds.[273]

                On the other hand, this ground of deportation includes any offense “relating to a [federally listed] controlled substance . . . .” [274]  The BIA and federal courts have sometimes seized on this “relating to” language to hold that certain non-substantive offenses are offenses “relating to” a controlled substance.  However, if “relating to” includes attempt and conspiracy, that would render meaningless Congress’ express inclusion of attempt and conspiracy in this deportation ground.  Therefore, this ground of removal does not include any other non-substantive offense. See § 21.33, infra.

[272] INA § § 212(a)(2)(A)(i)(II), 237(a)(2)(B), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), 1227(a)(2)(B).  See § § 21.4-21.5, 21.13, supra.

[273] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (attempt and conspiracy are listed as deportable controlled substances offenses, but solicitation is not); but see Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime “relating to” a controlled substance).

[274] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i).