(B)  The Paulus Rule.  In 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted of a violation of . . . any law or regulation relating to the illicit possession or traffic in narcotic drugs or marijuana . . . .”  In Matter of Paulus,[289] the BIA found that a noncitizen convicted of sale of an unidentified “narcotic”[290] did not fall within this ground of deportation because the INS could not prove that the “narcotic” that was the subject of the state criminal conviction was a “narcotic drug” listed under the federal drug schedules.

 

         At the time Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes, and the INS argued that a “generic” definition should be adopted that would have included whatever happened to be considered a “narcotic” in California or any other state.  The BIA rejected this argument on the basis of a California United States District Court decision that limited the term “narcotic drug”[291] to substances defined as a “narcotic drug” by federal law.[292]

 

                Since then, Congress has specifically limited the definition of “controlled substances” to those substances defined as such by federal law.[293]  Congress has therefore adopted Paulus as a matter of law.  In proceedings in which the respondent is charged with deportability[294], the government must demonstrate by clear and convincing evidence that the substance that was the subject of the state criminal conviction is a substance listed in the federal drug schedules.[295]  Because some state statutes include as controlled substances drugs which are not on the federal list, the party with the burden of proof loses where no particular controlled substance is identified in the state criminal record of conviction.

[289] Matter of Paulus, 16 I. & N. Dec. 274 (BIA 1965).

[290] California Health & Safety Code § 11503.

[291] Former INA § 241(a)(11).

[292] See Mendoza-Rivera v. Del Guercio, 161 F.Supp. 473 (Cal. 1958), aff’d sub nom. Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir. 1959).

[293] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substances offense ground of inadmissibility); INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (controlled substances conviction deportation ground); INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (illicit drug trafficking aggravated felony definition).

[294] INA § 237, 8 U.S.C. § 1227.

[295] See INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

ARTICLE " SAFE HAVEN " PAULUS DEFENSE " APPLICATION TO INADMISSIBILITY FOR CONTROLLED SUBSTANCES CONVICTION
If a noncitizen enters a plea to possession for sale of a controlled substances, in violation of a statute like California Health & Safety Code 11378, that does not identify the specific controlled substance, does this avoid inadmissibility for a controlled substance conviction under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)? The issue is whether a respondent is eligible for adjustment of status when he has a conviction under a statute such as California Health and Safety Code 11378. The Ninth Circuit concluded that a conviction under a companion statute, Health and Safety Code 11352(a) (sale or offer to sell, etc., a controlled substance) was not categorically a conviction related to a controlled substance for purposes of INA 212(a)(2)(A)(i)(II), because there are numerous substances in California that are not regulated by the Controlled Substances Act. Moreno v. Holder, 340 Fed.Appx. 408 (9th Cir. 2009); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). A respondent bears the burden to establish eligibility for relief when applying for adjustment of status. See 8 C.F.R. 1240.8(d). In Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007), the Ninth Circuit originally examined this regulation and held that even in cases where the petitioner is applying for relief, and it is his or her burden to establish eligibility, the burden of proof is met when the petitioner produces an inconclusive record of conviction, i.e., a record of conviction that does not necessarily establish that the controlled substance in the case was on the federal controlled substances schedules. In Sandoval-Lua, the petitioner was charged with a controlled substance offense under California Health and Safety Code 11379(a) and subsequently charged with removability under INA 237 (a)(2)(B)(i) (controlled substance offense) and INA 237(a)(2)(A)(iii) (aggravated felony). Id., 499 F.3d at 1124. Accordingly, he bore the burden of proof to establish his eligibility for cancellation of removal. 8 C.F.R. 1240.8(d); Sandoval-Lua at 1127. However, the petitioners record of conviction did not conclusively indicate whether his conviction contained all the elements that constituted an aggravated felony. Id. at 1130. Nonetheless, the Ninth Circuit concluded that the petitioner had carried his burden to establish by a preponderance of the evidence that he was not necessarily convicted of an aggravated felony and thus eligible for cancellation of removal, and that ambiguity in the record was sufficient to meet that burden. Id. at 1132. The BIA disagreed with Sandoval-Lua in Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 774 (BIA 2009), and held that it would not apply Sandoval-Lua to applications for relief filed after the May 11, 2005 enactment of the REAL ID Act. However, regardless of the filing date of the application for adjustment of status, the Ninth Circuit has rejected Matter of Almanza-Arenas and has held that Sandoval-Lua continues to apply to post-REAL ID Act applications for relief. Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011). The court also held that an Immigration Judge does not have the authority to require a noncitizen to supplement the record of conviction where the record is otherwise inconclusive. In Rosas-Castaneda, the criminal complaint and plea agreement were entered into evidence. The immigration judge found that the record was inconclusive and ordered Rosas-Castaneda to produce a transcript of his Arizona criminal court plea hearing. Id. at 263. The Ninth Circuit found that the judge did not have the authority to require the production of corroborating evidence where the record was otherwise inconclusive. Id. at 269. Next, on January 28, 2011, the Ninth Circuit issued Young v. Holder, __F.3d__, 2011 WL 257898 (9th Cir. 2011). Young addressed California Health and Safety Code 11352(a). In Young, the petitioner was a lawful permanent resident who had applied for cancellation of removal, and the issue was whether he had been convicted of an aggravated felony for purposes of cancellation of removal. The court reviewed the complaint, information, and a docket printout from the criminal court. Id., at 1781. Based on these documents, the Court found that the record of conviction was inconclusive, and that the petitioner therefore met his burden under Sandoval-Lua to show by a preponderance of the evidence that he is eligible for cancellation of removal. Id. at 1786. Based on Sandoval-Lua, Rosas-Castaneda, and Young, a respondent in the Ninth Circuit has met his burden to establish eligibility for adjustment of status by a preponderance of the evidence, and the IJ cannot require him to produce additional corroborating documents beyond what is already in the record, where the record of conviction establishes that the conviction was under California Health and Safety Code 11378, but without identifying the substance at issue in any of the record of conviction documents. Under these circumstances, a respondent has met his burden under Sandoval-Lua and is eligible for adjustment of status. Thanks to Stacy Tolchin. Note: The Government has filed a petition for rehearing in Rosas-Castaneda, seeking to overturn that decision and Sandoval-Lua. The court has ordered Rosas-Castaneda to file a response by 5/4/11.

INADMISSIBILITY " PAULUS DEFENSE " SANDOVAL-LUA ARGUMENT -- PRACTICE ADVISORY
The issue is whether a respondent is eligible for adjustment of status when he has a 1995 conviction under California Health and Safety Code 11352(a). The Ninth Circuit concluded that a conviction under California Health and Safety Code 11352(a) was not categorically a controlled substance violation for purposes of INA 212(a)(2)(B)(i) because there are numerous substances in California that are not regulated by the Controlled Substances Act. Moreno v. Holder, 340 Fed.Appx. 408 (9th Cir. 2009); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). A respondent bears the burden to establish eligibility for relief when applying for adjustment of status. See 8 C.F.R. 1240.8(d). In Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007), the Ninth Circuit originally examined this regulation and held that even in cases where the petitioner is applying for relief, and it is his burden to establish eligibility, the burden of proof is met when the petitioner produces an inconclusive record of conviction. In Sandoval-Lua, the petitioner was charged with a controlled substance offense under California Health and Safety Code 11379(a) and subsequently charged with removability under INA 237 (a)(2)(B)(i) (controlled substance offense) and INA 237(a)(2)(A)(iii) (aggravated felony). Id., 499 F.3d at 1124. Accordingly, he bore the burden of proof to establish his eligibility for cancellation of removal. 8 C.F.R. 1240.8(d); Sandoval-Lua at 1127. However, the petitioners record of conviction did not conclusively indicate whether his conviction contained all the elements that constituted an aggravated felony. Id. at 1130. Nonetheless, the Ninth Circuit concluded that the petitioner had carried his burden to establish by a preponderance of the evidence that he was not necessarily convicted of an aggravated felony and thus eligible for cancellation of removal, and that ambiguity in the record was sufficient to meet that burden. Id. at 1132. The BIA disagreed with Sandoval-Lua in Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 774 (BIA 2009), and held that it would not apply Sandoval-Lua to applications for relief filed after the May 11, 2005 enactment of the REAL ID Act. However, regardless of the filing date of the application for adjustment of status, the Ninth Circuit has rejected Matter of Almanza-Arenas and has held that Sandoval-Lua continues to apply to post-REAL ID applications for relief. Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011). The court also held that an Immigration Judge does not have the authority to require a noncitizen to supplement the record of conviction where the record is otherwise inconclusive. In Rosas-Castaneda, the criminal complaint and plea agreement were entered into evidence. The immigration judge found that the record was inconclusive and ordered Rosas-Castaneda to produce a transcript of his Arizona criminal court plea hearing. Id. at 263. The Ninth Circuit found that the judge did not have the authority to require the production of corroborating evidence where the record was otherwise inconclusive. Id. at 269. Next, on January 28, 2011, the Ninth Circuit issued Young v. Holder, 2011 WL 257898 (9th Cir. 2011). Young addressed California Health and Safety Code 11352(a). In Young, the petitioner was a lawful permanent resident who had applied for cancellation of removal, and the issue was whether he had been convicted of an aggravated felony for purposes of cancellation of removal. The court reviewed the complaint, information, and a docket printout from the criminal court. Id., at 1781. Based on these documents, the Court found that the record of conviction was inconclusive, and that the petitioner therefore met his burden under Sandoval-Lua to show by a preponderance of the evidence that he is eligible for cancellation of removal. Id. at 1786. Based on Sandoval-Lua, Rosas-Castaneda, and Young, a respondent has met his burden to establish eligibility for adjustment of status by a preponderance of the evidence, and cannot require him to produce additional corroborating documents beyond what is already in the record, where the record of conviction establishes that the conviction was under California Health and Safety Code 11352(a), but without identifying the substance at issue in any of the record of conviction documents. Under these circumstances, a respondent has met his burden under Sandoval-Lua and is eligible for adjustment of status. Thanks to Stacy Tolchin.

CONTROLLED SUBSTANCES GROUND OF INADMISSIBILITY - PAULUS DEFENSE INAPPLICABLE
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118, 123 (BIA 2009) (where noncitizen bears the burden of proof, it is the respondent who must show that the substance involved is not one listed in the Federal controlled substances tables).

NOTE: This is arguably dicta.

NOTE: In the Ninth Circuit, an ambiguous record of conviction is arguably sufficient to meet the "preponderance of the evidence" burden for a noncitizen seeking relief from inadmissibility. See Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (record of conviction that is inconclusive as to the exact nature of the controlled substance involved is sufficient to establish eligibility for cancellation of removal, placing on the government the burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance listed under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)); following Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007); S-Yong v. Holder, 578 F.3d 1169, 1174, 1176 (9th Cir.2009).

CONTROLLED SUBSTANCES - UNLISTED DRUGS
Because the Arizona drug schedules contain two substances that are no longer forbidden under federal law, an Arizona drug conviction that does not identify the particular controlled substances cannot trigger removal where the government bears the burden of persuasion. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007). While the BIA theoretically could revisit its decision in Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965), the Ninth Circuit relied on the plain meaning of the statute to reach its decision in Ruiz-Vidal. That the circuit expressly reached a decision because of the plain meaning of the statute precludes the BIA from changing its conclusion under the Brand X doctrine, because there is no ambiguity allowing it to interpret the statute and requiring deference by the circuit court of appeal. The Arizona controlled substances schedule includes two drugs, benzylfentanyl and thenyfentanyl, that are only listed on the federal schedule under the emergency temporary provision, which allows the government to add a substance in order to "avoid an imminent hazard to the public safety." This temporary provision is only valid for one year, and can be extended for six months, but then automatically expires. Benzylfentanyl and thenyfentanyl were both designated under this emergency temporary provision in 1985, so their listing automatically expired in 1986-1987, yet they still appear on the federal schedule as temporary designees. The issue than arises whether the Arizona definition of "narcotic drug" includes the two substances, benzylfentanyl and thenyfentanyl, that are not on the federal schedules published pursuant to the Controlled Substances Act, 21 U.S.C. 801, 812. In Morales-Trejo v. Holder, 340 Fed. Appx. 398, 399 n.1 (9th Cir. 2009), the Ninth Circuit acknowledged that the Arizona controlled substances list was not coextensive with the federal list because those two drugs are no longer federally controlled. See also United States v. Madera, 521 F. Supp. 149, 155 n.2 (D.Conn 2007). The statutory plain meaning argument is very strong. The controlled substances grounds of deportation and inadmissability, and the drug trafficking aggravated felony definition, all require the controlled substance to fall within the federal controlled substance definition. The statutes do not apply if the substance was "once defined" or "has ever been defined," as a federal controlled substance, which would have been easy enough for Congress to say if that is what Congress meant. The statutes can only be read to require that a substance must currently be listed in the federal schedules to currently qualify as a controlled substance under the immigration laws. Congress must give a noncitizen notice of what conduct will trigger deportation. See Jordan v. De George, 341 U.S. 223 (1951) (applying void-for-vagueness doctrine to ground of deportability). Thanks to Kara Hartzler and Dan Kesselbrenner.

First Circuit

CONTROLLED SUBSTANCES " STATES THAT FOLLOW FEDERAL DRUG SCHEDULES
James v. Holder, 698 F.3d 24, *27 (1st Cir. Oct. 19, 2012) (Any controlled substance within the meaning of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), is also automatically a controlled substance under the Connecticut statute. Conn. Gen.Stat. Ann. 21a"243(g); cf. 18 U.S.C. 924(c)(2); 21 U.S.C. 812. Although the state can choose to make other drugs subject to its statute, see Conn. Gen.Stat. Ann. 21a"243(c), James does not argue that it has in fact done so, cf. Gonzales v. Duenas"Alvarez, 549 U.S. 183, 193 (2007), nor have we found any evidence that it has done so.).

Second Circuit

CONTROLLED SUBSTANCES - KHAT
United States v. Hassan, 542 F.3d 968 (2nd Cir. 2008). (while the court agreed that it would have been more helpful for Congress to include "khat" by name as a controlled substance, it upheld the conviction because the defendant should have suspected that the khat in question contained either of the substances [cathinone and cathine] listed as chemicals in the controlled substances act).

Third Circuit

CONTROLLED SUBSTANCES OFFENSES " UNLISTED OFFENSES " VIRGINIA
Syblis v. Attorney General of U.S., ___ F.3d ___, ___, 2014 WL 4056557 (3d Cir. Aug. 18, 2014) (BIA acknowledged that Va.Code Ann. 54.1"3466 punished drug paraphernalia offenses related to substances not included within the CSA, such as those recognized by the official United States Pharmacopoeia National Formulary).

Fourth Circuit

CONTROLLED SUBSTANCES - KHAT
Argaw v. Ashcroft, 395 F.3d 521, 523 (4th Cir. 2005) ("Because khat is not listed as a controlled substance and it has not been established when khat might contain a controlled substance, Argaws conduct did not amount to a criminal offense.").

NOTE: Fresh khat contains cathinonea Schedule I drug under the Controlled Substances Act. Older leaves may contain only cathine, a Schedule IV substance. See also United States v. Caseer, 399 F.3d 828, 838 (6th Cir. 2005) ("[T]he term "cathinone" is sufficiently obscure that persons of ordinary intelligence reading the controlled substances schedules probably would not discern that possession of khat containing cathinone and/or cathine constitutes possession of a controlled substance.). Cf. United States v. Hussein, 351 F.3d 9 (1st Cir, 2003) (statute gives fair warning, similar to psilocybin); United States v. Jama, 2007 WL 709295 (W.D.Wash. 2007) (same).

Eighth Circuit

CONTROLLED SUBSTANCES FEDERALLY LISTED CONTROLLED SUBSTANCES " PAULUS DEFENSE
United States v. Sanchez-Garcia, 642 F.3d 658, 2011 WL 2462958 (8th Cir. Jun. 22, 2011) (California conviction of possession for sale [of] any controlled substance, in violation of Health & Safety Code 11378, did not categorically trigger federal sentence enhancement under USSG 4B1.2(b), or 2L1.2, cmt. 1(B)(iv), since the California schedules include substances not federally listed); citing Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007) (California law regulates the possession and sale of numerous substances that are not similarly regulated by the CSA); United States v. Garcia"Medina, 497 F.3d 875, 877 (8th Cir.2007) (because the California statute criminalizes conduct that triggers an enhancement as well as conduct that does not, the statute is overinclusive).

Ninth Circuit

CATEGORICAL ANALYSIS " DIVISIBILITY " CONTROLLED SUBSTANCES
United States v Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc) (several California controlled substances statutes, including Health and Safety Code 11352 and 11379, are divisible as to both the controlled substance and the different types of conduct, which means that an immigration authority can review the persons record of conviction to see which substance and conduct was the basis for the conviction). NOTE: The majority found the substance involved an element rather than a means because a person arrested for simultaneous possession of two substances would be charged with two crimes. The majority relied upon People v. Patterson, 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549 (Cal. 1989) (certain offenses punished under the drug statutes are inherently dangerous), to determine that the actus reus is also divisible. There was significant disagreement among the Circuit court judges, and many suggested remanding the decision to the California Supreme Court to resolve apparent conflicts on whether the actus reus and the controlled substances were means or elements.

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 SUBSTANCES OFFENSES " IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. Huitron-Rocha, ___ F.3d ___, 2014 WL 5801404 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11352(a) is a divisible statute, so the modified categorical analysis can be used to examine the record of conviction to determine if the specific controlled substance involved in the case is identified and if so is on the federal list); Coronado v. Holder, 759 F.3d 977, 983"85 & n. 4 (9th Cir.2014) (California Health and Safety Code 11377(a), possession of a controlled substance, is a divisible statute, within the meaning of Descamps, because the statute contains a listing of alternative controlled substances and because California law confirms that the controlled substance is an essential element of the crime); United States v. De La Torre"Jimenez, No. 13"50438, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

CONTROLLED SUBSTANCES OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES "IDENTITY OF CONTROLLED SUBSTANCE
United States v. De La Torre"Jimenez, ___ F.3d ___, 2014 WL 5786715 (9th Cir. Nov. 7, 2014) (California Health and Safety Code 11351 is materially indistinguishable from Health and Safety Code 11377(a), so Coronado controls and the modified categorical approach applies).

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

CONTROLLED SUBSTANCES " MEANS V. ELEMENTS " PAULUS DEFENSE
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

RECORD OF CONVICTION " MINUTE ORDERS & ABSTRACT OF JUDGMENT
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (where the charging document specifies the drug as one listed in the CSA, and the abstract or minute order shows the defendant pleaded to that Count, Snellenberger applies and the defendant may be found to have pleaded to a controlled substances offense).

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE " AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Perez-Mejia v. Holder, ___ F.3d ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (California conviction of possessing a narcotic for sale, under Health and Safety Code 11351, constituted a controlled substances conviction, for purposes of removal, even though California offense was overbroad in including at least one substance, acetylfentanyl, that was not on the federal controlled substances list, where respondent conceded removability at pleading stage of removal proceeding); but see S"Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (We have previously found that California law regulates the possession and sale of many substances that are not regulated by the [federal Controlled Substances Act]); Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1077"78 (9th Cir. 2007) (to establish removability, the government must prove that the controlled substance at issue is not only listed under California law, but also contained in the federal schedules of the [federal Controlled Substances Act].).

CONTROLLED SUBSTANCES OFFENSES " FEDERALLY LISTED SUBSTANCE
Pagayon v. Holder, 642 F.3d 1226, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (Section 1127(a)(2)(B)(i) requires the government to prove that the substance underlying an alien's state law conviction for possession is one that is covered by Section 102 of the [federal Controlled Substances Act]. . . . Because not all substances prohibited by California law are controlled substances under federal law, the simple fact of conviction under section 11377(a) of the California Health and Safety Code does not prove that the conviction [categorically] involved a controlled substance.), citing Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1076, 1078 (9th Cir.2007); see United States v. Vidal, 504 F.3d 1072, 1088 (9th Cir.2007); United States v. Velasco"Medina, 305 F.3d 839, 852 (9th Cir.2002).

CONTROLLED SUBSTANCES - PAULUS - RELIEF
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (California statute proscribing possession of certain controlled substances, Health & Safety Code 11350, proscribes more substances than the disqualifying offense, so the court presumes the statute is categorically overbroad with respect to the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and cannot categorically disqualify the respondent from eligibility for cancellation of removal); see Suazo Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir. 2008).

ADMISSIONS OF OFFENSES - TESTIMONY BEFORE IJ
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (testimony before IJ that conviction involved a federally listed controlled substance sufficient to establish inadmissibility under INA 212(a)(2)(A)(i)(II), admitting commission of a controlled substances offense). NOTE: This decision was not well considered. The court did not consider the effect of Matter of Winter, 12 I. & N. Dec. 638, 642 (BIA 1967, 1968) ("the plea to an indictment or complaint is so much an integral part of the entire criminal proceeding that it cannot be isolated from the final result of that proceeding, and given more force or finality than that result"), and related cases. The court also did not address the issue of whether the "admission" was properly taken by the Immigration Judge. See Matter of K, 7 I. & N. Dec. 594, 597 (BIA 1957).

CONTROLLED SUBSTANCES - PAULUS - INADMISSIBILITY
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (testimony before IJ that conviction involved a federally listed controlled substance sufficient to establish inadmissibility under INA 212(a)(2)(A)(i)(II), admitting commission of a controlled substances offense).

NOTE: This decision was not well considered. The court did not consider the effect of Matter of Winter, 12 I. & N. Dec. 638, 642 (BIA 1967, 1968) ("the plea to an indictment or complaint is so much an integral part of the entire criminal proceeding that it cannot be isolated from the final result of that proceeding, and given more force or finality than that result"), and related cases. The court also did not address the issue of whether the "admission" was properly taken by the Immigration Judge. See Matter of K, 7 I. & N. Dec. 594, 597 (BIA 1957).

PAULUS DEFENSE
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (the determination of whether a controlled substances conviction involved a federally listed controlled substance may be made at the modified categorical analysis stage).

NOTE: This would likely mean that a noncitizen convicted of a controlled substance involving an unidentified controlled substance would not be able to avoid inadmissibility on the basis of the conviction because the noncitizen bears the burden of proof.

Lower Courts of Ninth Circuit

SAFE HAVENS " PAULUS DEFENSE " NEVADA
Nevadas drug schedules appear significantly broader than the Federal Controlled Substances schedules, since they include dangerous substances, in addition to controlled substances. Upon comparing the way drugs are scheduled by the Controlled Substance Act with NRS 453.166 to 453.219, one finds that Nevada uses the identical criteria for scheduling drugs as the Controlled Substance Act. In fact, the Revisers Note at the beginning of NRS Ch. 453 lists the Controlled Substance Act as the original source for 453.166 to 453.219. The Nevada State Board of Pharmacy has indicated that Nevada has adopted the Federal Controlled Substances Act, as required by NRS 453.2182. The only exceptions to the mirroring between the Nevada and Federal lists of controlled substances are those drugs that the Nevada Board of Pharmacy has added to the list pursuant to NRS 453.2188. The Nevada Board of Pharmacy reviews the federal list of controlled substances, found at 21 CFR 1308.11 to 1308.15, no less than once a year to make sure that any drugs that the federal government deems to be a controlled substance is included on Nevadas list of controlled substances. Since there are no drugs that the federal government classifies as a controlled substance that Nevada does not, it would be correct to state that Nevadas definition of dangerous drug found at NRS 454.201 would exclude any drugs classified as controlled substance under federal law as well as under Nevada law. Accordingly, a respondent convicted of possession of a dangerous drug under NRS 454.351 should not be considered to have been convicted of a controlled substance offense under federal law. Thanks to Jon Eric Garde.

Tenth Circuit

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (government must establish by clear, unequivocal, and convincing evidence that the facts alleged as grounds of removability are true: that is, that the criminal conviction was for possession of a substance that is not only listed under [state] law, but also contained in the federal schedules of [the Controlled Substances Act].); quoting Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1076, 1078 (9th Cir. 2007) (internal quotation marks and brackets omitted).

Eleventh Circuit

CONTROLLED SUBSTANCES " PAULUS DEFENSE " GEORGIA
Georgias schedules of controlled substances appear to be broader than the federal schedules as Georgias covers Dextromorphan, which is no longer covered by the federal schedules. O.C.G.A. 16-13-25. Thanks to Sejal Zota.

Other

CONTROLLED SUBSTANCES " ARIZONA " PAULUS DEFENSE
Practice Advisory " Arizona " Paulus Unidentified Controlled Substance Defense Two drugs on the Arizona controlled substances schedules are not on the federal list, so the unidentified substance defense and the unlisted substance defense apply. They are Benzylfentanyl and Thenylfentanyl. Thanks to Maris J. Liss.

CAL CRIM DEF " CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE DEFENSE " PRACTICE ADVISORY
Health & Safety Code 11350-11352. Formerly, these offenses covered certain substances that were not on the federal list, and these statutes were therefore divisible for purposes of removal and eligibility for relief under the strict standards of Moncrieffe and Descamps. For example, the government conceded in Esquivel-Garcia v. Holder, 593 F. 3d 1025 (9th Cir. 2010) that 11350 was divisible, but the conviction in that case occurred in 1989 when schedule II at HS 11055(b) (referenced by 11350) still included apomorphine, which is specifically excluded from the federal CSA. See 21 CFR 1308.12(b)(1). However, apomorphine no longer appears on the California schedules. Likewise, Matter of Paulus relied on the fact that peyote is prohibited under California law, but was not a federal controlled substance at the time. Peyote now is on the federal schedule I. It is not clear whether any other controlled substances are on the California lists for these offenses, but not on the federal lists. Acetafentanyl is also an analogue to a federally controlled substance and there is a catch all in the CSA for analogues. There is a good argument that the burden is on the government to establish every fact necessary for deportation, and the government must therefore establish that every drug on the 11350 list is also on the federal list before the offense categorically triggers deportation. N. Tooby & K. Brady, California Criminal Defense of Immigrants 21.31 (2014). There is another problem with this defense against removal. The unspecified drug defense would not be successful in immigration court, if the immigration judge required a showing of "realistic probability" of prosecution in California as to the unlisted drug. Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014). There is a strong argument that Ferreira is bad law, and should not be followed, or should be rejected by the Ninth Circuit. Matter of Chairez-Castrejon ,26 I. & N. Dec. 349 (BIA 2014). See also National Immigration Project of the National Lawyers Guild and Immigration Defense Project, Practice Advisory, The Realistic Probability Standard: Fighting Government Efforts To Use It To Undermine The Categorical Approach (Nov. 5, 2014) http://nationalimmigrationproject.org/legalresources/practice_advisories/cd_pa_realistic_probability_11-5-2014.pdf. If the IJ does require a showing of realistic probability of prosecution as to the specific unlisted drug, however, counsel have been unable to come up with a sample prosecution showing offenses involving the drug are in fact prosecuted in California. It is therefore far safer at present to seek a plea to another offense that does not trigger removal, such as accessory after the fact to a drug offense, under Penal Code 32, which is not considered a drug offense or a drug-trafficking aggravated felony. Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997). For other possible safer dispositions, see N. Tooby & K. Brady, California Criminal Defense of Immigrants 8.17-8.31 (2014). Health & Safety Code 11377-11379. These offenses certain substances that are not on the federal list, and these statutes are therefore divisible for purposes of removal and eligibility for relief under the strict standards of Moncrieffe and Descamps. Coronado v. Holder, 759 F. 3d 977 (9th Cir. 2014). Two federally unlisted drugs, prohibited by Health & Safety Code 11377-11379 for which proof of prosecution exists are khat, prohibited under Health & Safety Code 11055(d)(2), and chorioinic gonadatropin, prohibited by Health & Safety Code 11056(f). There may be more. Therefore, Ferreira does not prevent these statutes from being considered divisible.

CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).

CONTROLLED SUBSTANCES"PAULUS DEFENSE LIMITATIONS
The Paulus defense, requiring a controlled substances offense to involve a federally-listed controlled substance, may have some limitations. See Martinez-Espinoza, 25 I&N Dec. 118, 121 (BIA 2009) ("Second, we have long drawn a distinction between crimes involving the possession or distribution of a particular drug and those involving other conduct associated with the drug trade in general. Thus, the requirement of a correspondence between the Federal and State controlled substance schedules, embraced by Matter of Paulus, 11 I&N Dec. 274, for cases involving the possession of particular substances, has never been extended to other contexts by the Board. For example, in Matter of Martinez-Gomez, 14 I&N Dec. 104, 105 (BIA 1972), we held that an aliens California conviction for opening or maintaining a place for the purpose of unlawfully selling, giving away, or using any narcotic was a violation of a law relating to illicit traffic in narcotic drugs under former section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11) (1970), even though the California statute required no showing that only Federal narcotic drugs were sold or used in the place maintained, because the primary purpose of the law was to eliminate or control traffic in narcotics). In addition, the BIA stated: First, in Paulus and Ruiz-Vidal the Government bore the burden of proving that an alien was deportable because of a controlled substance violation. But here the sole question is whether the respondent can meet his burden of proving eligibility for adjustment of status. Section 291 of the Act, 8 U.S.C. 1361 (2006); see also Matter of Rainford, 20 I&N Dec. 598, 599 (BIA 1992) (The burden of proving eligibility for the privilege of adjustment of status is upon the alien.). Under the regulations, moreover, [i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. 8 C.F.R. 1240.8(d) (2009). Inadmissibility to the United States is a ground for mandatory denial of adjustment of status, and the respondents drug paraphernalia conviction raises a legitimate question as to whether that ground for mandatory denial may apply in his case. Id. Thus, the respondent bears the burden to resolve any issue that might arise in his case by virtue of an asymmetry between the Federal and State controlled substance schedules. (Id. at 121.) In Matter of Hernandez-Ponce, 19 I.& N. Dec. 613 (BIA 1988), the Board said being under the influence became a deportable conviction relating to a controlled substance after the ADAA Act passed in 1988, but it seemed to include the fact that Phencyclidine is listed as a controlled substance in the CSA, as a key fact underpinning the ruling: The Service, in its written brief, asserts that, by enacting the Anti-Drug Abuse Act, Congress the deportation statute now renders deportable any alien convicted of any law relating to controlled substances, including being `under the influence of a controlled substance. It is evident to us, according to the plain words of the amended statute, that Congress intended to expand rather than limit the power of the Government to curtail drug abuse through the immigration laws. Prior to the recent amendments, section 241(a)(11) listed the specific drug-related criminal activities which Congress considered sufficient to warrant the exclusion or deportation of aliens. The amended statute refers to `any law or regulation relating to a controlled substance. These are words which, according to our construction, clearly contain no limitation. Thus, our construction of the former statute set forth in Matter of Sum, supra, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful possession, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. In the case before us, the respondent has admitted to being twice convicted for the crime of use and being under the influence of phencyclidine. Phencyclidine is listed as a controlled substance under the Controlled Substances Act. We must conclude that the respondent falls within the purview of the amended language of section 241(a)(11) of the Act, which refers to convictions `relating to a controlled substance.` Accordingly, the decision of the immigration judge relating to the respondent's deportability will be affirmed. (Id. at 616.) Thanks to Jonathan Moore.

PRACTICE ADVISORY " PAULUS DEFENSE IN CONNECTICUT AND ELSEWHERE
The federal controlled substances list mistakenly failed to renew the listing of two drugs. Benzylfentanyl and Thenylfentanyl continued to be listed on the federal controlled substances schedules from 1986 to 2010 even though their designation had expired. (See 75 Fed. Reg. 37300-301 (June 29, 2010).) These substances, however, continued to be listed on the Connecticut controlled substances schedules for this entire period, and the same is likely true for other states as well, based on the federal error. This gives rise to the argument that the Connecticut (and perhaps other states) controlled substances lists contained at least some drugs that were not listed on the federal schedules, so the Connecticut controlled substances offenses are not a categorical match with the federal controlled substances offenses for immigration purposes. Since there is no categorical match, the courts must use the modified categorical analysis. If the record of conviction does not establish which drug on the state list was involved in the case, then the state conviction does not trigger deportation because the government bears the burden of proof. Thanks to Michael Boyle.

AGGRAVATED FELONIES - DRUG TRAFFICKING - UNLISTED DRUGS CONTROLLED SUBSTANCES OFFENSES - UNLISTED DRUGS
A number of controlled substances are listed on the California controlled substances lists governed by Health & Safety Code 11350, 11351, and 11352, but not proscribed by the federal Controlled Substances Acts: e.g., acetylfentanyl (N-(1-phenethyl-4-piperidinyl) acetanilide), evomethadyl acetate, lophophora williamsii lemaire, sodium oxybutyrate, and thiophene analog of acetylfentanyl (N-(1-(2-(2-thienyl)ethyl)-4-piperidinyl) acetanilide).

Thanks to Joseph Justin Rollin.

CONTROLLED SUBSTANCES - PAULUS DEFENSE
An ICE attorney recently did a detailed comparison of the controlled substances forbidden under California Health & Safety Code 11350, with those forbidden under federal law, and claimed there was only one drug on the state list that was not on the federal list: apomorphine. Thanks to Michael Mehr. One extra drug, however, is enough to enable the Paulus defense to work.

CONTROLLED SUBSTANCES - FEDERAL LIST - REGULATORY AUTHORITY TO ADD CONTOLLED SUBSTANCES
21 U.S.C. 812 delegates the authority to add, transfer or remove drugs on the five original schedules established by Congress, to the Attorney General and, "pursuant to Executive Order 1172," to the DEA. This delegation of authority was apparently upheld in United States v Davis 564 F.2d 840 (9th Cir 1977), cert. den. 434 U.S. 1015, 54 L.Ed. 760, 98 S.Ct. 733 (1977). Thanks to Jonathan Moore.

SAFE HAVEN - UNIDENTIFIED CONTROLLED SUBSTANCE - PAULUS DEFENSE
People v. Guy, 107 Cal.App.3d 593, 601, 165 Cal.Rptr. 463 (1980) (knowledge of the character of a controlled substance means that the defendant knew it was a controlled substance, but s/he need not have known its precise chemical composition); CALCRIM 2300, p. 204 (Spring 2008) ("The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/ furnished/ administered/ gave away/ transported/ imported), only that (he/she) was aware of the substance's presence and that it was a controlled substance.").

SAFE HAVEN - UNIDENTIFIED CONTROLLED SUBSTANCE - PAULUS DEFENSE
People v. Guy, 107 Cal.App.3d 593, 601 (1980) (knowledge of the character of a controlled substance means that the defendant knew it was a controlled substance, but s/he need not have known its precise chemical composition); People v. Garringer (1975) 48 Cal.App.3d 827 [121 Cal.Rptr. 922] (knowledge for the purpose of conviction under Health and Safety Code 11377, is knowledge of the controlled nature of the substance and not its precise chemical composition); CALCRIM 2300, p. 204 (Spring 2008) ("The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/ furnished/ administered/ gave away/ transported/ imported), only that (he/she) was aware of the substance's presence and that it was a controlled substance.").

"The only knowledge that is required to sustain the conviction is knowledge of the controlled nature of the substance. [Citation.] The defendant need not know the chemical name or the precise chemical nature of the substance. Any more stringent rule as to knowledge would, for all practical purposes, make the statute inapplicable to anyone who had not personally performed a chemical analysis of the contraband in his possession. Needless to say, such was not the Legislature's intent." (People v. Garringer, supra., 48 Cal.App.3d 827, 835.) Moreover, Garringer expressed what has been implicit before; in many cases where evidence could not prove a defendant's knowledge of the specific drug, courts have found sufficient evidence of knowledge. (See, e.g., People v. Showers (1968) 68 Cal.2d 639 [68 Cal.Rptr. 459, 440 P.2d 939]; People v. Padilla (1971) 15 Cal.App.3d 1010 [93 Cal.Rptr. 554].)

(People v. Guy (1980) 107 Cal.App.3d 593, 601, n.7165 Cal.Rptr. 463.) Since evidence that the defendant knew the identity of the specific controlled substance is not necessary for conviction, the nature of the particular controlled substance is likewise unnecessary to be included in the charge."

CONTROLLED SUBSTANCES " PAULUS DEFENSE FOR MARIJUANA OFFENSES
In a marijuana case, criminal defense counsel could try to enter a plea to possession of a controlled substance, in violation of Health & Safety Code 11350, instead of a marijuana offense, on the theory that the client possessed THC, which is on the controlled substances schedules applicable to Health & Safety Code 11350, et seq. Synthetic THC is on this schedule, but natural THC is the natural ingredient in marijuana, but a sympathetic prosecutor may not object, since the punishment for the Health & Safety Code 11350, et seq., offenses are far greater than for the analogous marijuana offenses. It is critical not to name the specific drug in the record of conviction, so the Paulus defense will work. Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). There is no reason this would not work for sale, transportation, possession for sale, etc., as well as for possession offenses.

CONTROLLED SUBSTANCES " MARIJUANA " PAULUS DEFENSE
Chris Conrad is an expert on the biological classification of various species of Cannabis, including C. Sativa L., and C. Indica L. chris@chrisconrad.com; T 510.215.8326; F 510.234.4460. His assistant Danielle is very responsive if you have trouble getting in touch with Mr. Conrad. Her email address is pirkolater@gmail.com.

CONTROLLED SUBSTANCES " MARIJUANA " CONCENTRATED CANNABIS
In California, marijuana includes concentrated cannabis which includes both hashish and hash oil. E.g., Health & Safety Code 11357(b) (marijuana, other than concentrated cannabis), (c), (d), (e). Compare 11357(a), which refers only to concentrated cannabis, and does not mention marijuana. The Paulus defense can sometimes be used in California marijuana cases by trying to plead up from the lower sentences of the various marijuana offenses (e.g., possession for sale under 11359) to possession for sale under 11351 (which includes opiates, heroin, cocaine, and, notably, synthetic THC). If the 11351 plea does not identify the specific drug, the Paulus defense works because 11351 prohibits possession for sale of at least some non-federal controlled substances. The only difficulty is persuading the prosecution to accept a plea to synthetic THC when the actual substance was marijuana, which contains non-synthetic THC. In United States v. Moore, 446 F.2d 448 (3d Cir. 1971), however, the circuit rejected the cannabis indica argument, relying on Timothy Leary's Supreme Court case. The Third Circuit said: There is only one species of this plant. Leary v. United States, 395 U.S. 6, 50 (1969). However, because of the difference in soil content and climatic conditions, the plant grown in various parts of the world is not physically the same. For example, Mexican marihuana is more potent than domestic and is consequently preferred by smokers. Leary v. United States, supra, at 49, 89 S.Ct. 1532. Cannabis indica is the name given to Cannabis sativa L. grown in India. 12 C.J.S. Cannabis pp. 1111, 1112. We agree with the District Court that "Congress intended the inclusion of the indica variety within the definition of marihuana as set forth in 26 U.S.C. 4761(a)." Although the definition was in an earlier statute, nothing appears to be different in the current version. Thanks to Dan Kesselbrenner. Modern biology, however, may disagree. Medical marijuana websites distinguish between cannabis indica and cannabis sativa, as different species of plant. It may be worth revisiting this 40-year-old science.