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....

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.