Criminal Defense of Immigrants


§ 21.33 C. Offense is Not "Relating to" a Controlled Substance

Skip to § 21.

For more text, click "Next Page>"

The controlled substances grounds of removal apply to violations of law “relating to” a controlled substance.[280]  The courts generally construe the “relating to” language to broaden the grounds of removal to include offenses that may not be strictly considered controlled substances offenses.  However, the courts have put some limits on how broadly this language can be read.  See § 16.36, supra.  Note that while some sections of the aggravated felony definition also use the “related to” language,[281] the aggravated felony drug trafficking ground does not. 

[280] See 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).

[281] See also § 16.36, supra.



Second Circuit

Freire v. Holder, ___ F.3d ___ (2d Cir. May 27, 2011) (BIA has authority to grant request for continuance to allow adjustment of status before USCIS).

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.").

Ninth Circuit

Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.