Unit 7: Drug Offenses

Topics

 Elements of Controlled Substance Ground of Deportability  Drug Trafficking Aggravated Felony Ground  Inadmissibility Issues

Controlled Substance INA

§

237(a)(2)(B)(i)

 Elements of ground of removal – Noncitizen – – – – Convicted After admission Law relating to controlled substance as defined in 21 USC § 802 Not single offense for personal use of 30 grams or less of marijuana

Non-Convictions

 Disposition under Federal First Offender Act [18 USC § 3607] for possession of controlled substance  State rehabilitative treatment for first offenders.

Lujan-Armendariz v. INS

, 222 F.3d 728 (9th Cir. 2000)  Giving away small amounts of marijuana

Conviction Review 2

 Does not include: – Juvenile disposition.

Matter of Devison

, 22 I&N Dec. 1362 (BIA 2000) – Conviction on direct appeal – Conviction vacated for legal or constitutional defect

Matter of Pickering

, 23 I&N Dec. (BIA 2003)

Preparatory Crimes 9th Cir.

 In the 9th Cir. “ attempts ” and “ conspiracies ” are the only preparatory crimes that satisfy the controlled substance ground of deportability because the statute lists them expressly

See Coronado-Durazo v. INS,

123 F.3d 1322 (9th Cir. 1997) (Arizona solicitation conviction is not a controlled substance offense)

BIA and Preparatory Crimes

 According to the BIA, a noncitizen is deportable for: – – facilitation for sale

Matter of Del Risco

, 20 I&N 109 (BIA 1989) and solicitation for sale

Matter of Beltran

, 20 I&N Dec. 521 (BIA 1992) – but not for misprision of felony.

Matter of Velasco

, 16 I&N Dec. 281 (BIA 1977)

Not Single Marijuana Conviction

 The government has the burden of establishing that the offense is not a single offense of simple possession for personal use of 30 grams or less of marijuana.

 A respondent will not be subject to removal under this ground, absent such proof.

Federal Controlled Substance

 In removal case government should lose if it cannot establish that substance is on federal list.

Matter of Paulus

, 11 I&N Dec. 274 (BIA 1965)  Misprision (concealing felony)

Matter of Velasco

, 16 I&N Dec. 281 (BIA 1977)  Fake controlled substances

Paraphernalia

  Possession of Paraphernalia is an offense relating to a controlled substance.

Luu-Le v. INS

, 224 F.3d 911 (9th Cir. 2000) Nevertheless, an expungement under rehabilitative statute will defeat deportability in 9th Circuit.

Cardenas-Uriarte v. INS

, 227 F.3d 1132 (9th Cir. 2000)

Strategies to Avoid Removal

 Work with criminal defense practitioner to identify an offense that does not relate to a controlled substance like misprision or solicitation.

Exercise

 Please indicate by show of hand whether the following offense: – Always – Sometimes or – Never  Fits the controlled substance deportability ground

Drug Trafficking Aggravated Felonies

two prongs: 1.

“ drug trafficking crime ” 2. Common meaning of Trafficking

Definition

 INA § 101(a)(43)(B) defines aggravated felony to include: "any illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act),

including

any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code)"

Definition 2

 This definition has two parts or “ prongs ” : (1) “ illicit trafficking in a controlled substance [listed on the federal schedules], and (2)

including

“ any drug trafficking crime (as defined in [18 U.S.C. § ] 924(c)(2)) . . . .

”

Elements of Commercial Trafficking



A conviction



That is a felony



For a substantive offense (or attempt or conspiracy)



engaging in a commercial transaction



In a federally listed controlled substance

Elements Continued

 The BIA evaluates whether a state offense is a felony by examining the maximum potential punishment under the criminal statute.

Matter of Davis

, 20 I. & N. Dec. 536 (BIA 1992).  Under this test, a conviction for selling a small amount of marijuana punishable by less than a year is not an Aggravated felony.

9th Circuit Interpretation

 Straight sale is an aggravated felony,

while

offering to sell or commit any drug offense

is not an aggravated felony.

United States v Rivera-Sanchez

, 247 F.3d 905, 907-8 (9th Cir. 2001) (

en banc

)

Drug Trafficking Crime defined:

 For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act 21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act 21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act 46 U.S.C. App. § 1901 et seq.).

Drug Trafficking Crime

 Aggravated felony if:  Federal offense identified in listed statutes or state conviction analogous to an federal listed in three statutes AND  Offense is a felony.

Matter of Yanez-Garcia

, 23 I&N 390 (BIA 2002)

Definition of Felony

  21 U.S.C. § 802 (13) defines felony to mean “ any Federal or State offense classified by applicable Federal or State law as a felony ” 21 U.S.C. § 802(44) defines "felony drug offense" as “ an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State ”

“

Felony

”

for purposes of Drug Trafficking Crime

 For offense that is not a felony under federal law, BIA looks to classification of convicting jurisdiction to decide whether an offense is a felony when determining whether offense is a felony drug trafficking crime.

Matter of Santos Lopez

, 23 I&N Dec. 419 (BIA 2002)

Possession of Controlled Substance

 First offense possession is a federal misdemeanor with two exceptions – possession of > 5 grams of crack – – possession of flunitrazepam, a date rape drug everything else is a misdemeanor

First Offense Possession State Offense

 If state treats possession offense as misdemeanor, then it not an Agg. felony  If state treats possession offense as a felony, then it is a aggravated felony.

– Except for 3d Circuit, which examines state offenses by analyzing how federal law would punish that offense.

Gerbier v. Holmes

, 280 F.3d 297 (3d Cir. 2002)

Enhancement or Distinct Offense

 The BIA recognizes that a person is deportable under the controlled substance, moral turpitude, aggravated felony, and firearm grounds of deportability for a conviction of a substantive offense, not an enhancement.

Matter of Rodriguez-Cortes

, 20 I&N Dec. 587 (BIA 1992)

Second Offense Possession

  Under federal law, second offense possession is a felony if the defendant has a prior conviction, otherwise it is a misdemeanor 21 U.S.C. § 844 Under

Apprendi

, this means that 21 U.S.C. § 844 is an enhancement. Second offense possession is not a distinct substantive offense under federal law.

Second Offense Possession (9th Circuit View

 The Ninth Circuit treats second offense possession as a misdemeanor under federal law.

U.S. v. Ballasteros-Ruiz

, 319 F.3d 1101 (9th Cir. 2003)  Since it neither is a drug trafficking crime because it is not a felony nor does it involve trafficking, second offense possession is not an aggravated felony

Other Issues

 Some circuits decided this issue before

Apprendi

.

See

,

e.g., Amaral v. INS

, 977 F.3d 33 (1st Cir. 1992)  Regardless of circuit law, 21 U.S.C. 844 (a) is only a felony if the defendant had a prior conviction.

Tip

 In a circuit that hasn ’ t recognized that 21 USCS § 844(a) is an enhancement for second offense possession, argue that a noncitizen is not deportable unless ICE can prove that one conviction took place before the other.

Reason to Believe

INA 212(a)(2)(C)(i):

creates ground of inadmissibility for a noncitizen for whom the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemical in section 102 of the Controlled Substances Act (21 U.S.C. 802)

Reason to Believe 2

 Ground of inadmissibility also includes:  a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical

Exercise 1

 Is a conviction for unlawful possession of every controlled substance in your state ’ s schedules necessarily a deportable offense? How can you tell?

Exercise 2

 Does your state have misprision of felony or other non-substantive offense that could defeat controlled substance deportability?