(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).

BIA

CONTROLLED SUBSTANCES - DRUG OFFENSES NOT PUNISHED UNDER FEDERAL LAW MAY STILL TRIGGER INADMISSIBILITY
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) ("section 212(a)(2)(A)(i)(II) of the Act does not require that a State offense be punishable under Federal law in order to support a charge of inadmissibility. Section 212(a)(2)(A)(i)(II) does contain the parenthetical phrase "as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)," but this phrase modifies only its immediate antecedent (i.e., "controlled substance"), not the whole text of the section."), following Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008).

Third Circuit

CONTROLLED SUBSTANCES " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a controlled substances violation for purposes of triggering deportation under INA 237(a)(2)(B)(i)), 8 U.S.C. 1227(a)(2)(B)(i).

Other

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))