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The Board of Immigration Appeals finally capitulated in this decision to what it recognized was the "overwhelming circuit court authority" that an aggravated felony conviction does not bar a waiver of inadmissibility under 212(h) unless the applicant has "previously been admitted to the United States as an alien lawfully admitted for permanent residence."  In other words, a 212(h) waiver of criminal inadmissibility is available if a permanent resident adjusted to that status in the U.S., but not if she entered the U.S. on an immigrant visa.  Nine circuit courts had found that conclusion compelled by the plain language of the statute, so the Board gave up the fight and withdrew from its decisions in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

Admittedly, though, one can see why the Board sought to have the aggravated felony bar apply to permanent residents regardless of whether they adjusted status or entered on an immigrant visa: There seems to be no rational basis for distinguishing between the two groups.  Without a rational basis for the distinction, denying 212(h) to permanent residents who entered the U.S. on immigrant visas would violate due process.  I am sure that will be the next argument for intrepid immigration lawyers like myself--the 212(h) aggravated felony bar should not apply to immigrant visa entrants either!

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The Board of Immigration Appeals held that administrative closure was appropriate in this case because the respondent's deportability turned on the outcome of a direct appeal of his conviction.  In reaching that decision, the Board applied the factors discussed in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (granting administrative closure based on government's unexplained delay in adjudicating a visa petition).

The Avetisyan factors include, but are not limited to:

(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

The Board found these factors favored administrative closure in Montiel's case.  The only charge of removability was his for conviction alien smuggling, an aggravated felony, and the Board found it significant that this conviction followed a jury trial.  The Board also found it significant that Montiel was appealing his conviction, rather than merely the sentence imposed. Further, it implicitly found that Montiel's appeal was not frivolous because it noted that administrative closure to await the outcome of an appeal would not be appropriate where the appeal is facially frivolous.  Given those factors, the Board administratively closed Montiel's removal proceedings.

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The Board of Immigration Appeals previously held that Chairez's conviction for felony discharge of a firearm in violation of section 76-10-508.1 of the Utah Code is a removable firearms offense, but not an aggravated felony.  Visit my previous post for that decision. DHS did not like that decision and filed a motion to reconsider, arguing it was not consistent with the emerging law of the Tenth Circuit (in which Chairez's removal proceedings were held).

The Board's previous decision in Chairez concluded that a conviction of section 76-10-508.1(1)(a) is not categorically a crime of violence aggravated felony because the conviction may rest on intentional, knowing, or reckless conduct and reckless conduct will not support a crime of violence conviction.

The Board's previous decision further held that it could not look to the record of conviction to determine whether Chairez pleaded guilty to committing the offense with intent, knowledge, or recklessness. The Supreme Court in Descamps held that so-called modified categorical analysis was permitted only where the statutory definition of the offense was divisible into multiple alternative elements.  And the Board understood elements to mean those facts about the crime that a jury would need to agree upon to convict (as opposed to means, such as baseball bat vs. pipe, on which a jury need not agree).  The Board found that Utah law did not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness in discharging a firearm in violation of section 76-10-508.1(1)(a), so it held the offense was not divisible and thus the record of conviction could not narrow the conviction to match the aggravated felony definition.

DHS argued on a motion to reconsider, however, that a recent decision of the Tenth Circuit understood the "alternative elements" referred to in Descamps to mean any alternative phrases in a statutory definition of an offense, regardless of whether a jury must agree upon one of the alternatives to convict.  The Board that agreed the Tenth Circuit understood the Supreme Court's decision this way and found that it was compelled to apply that interpretation in the Tenth Circuit.  Under that interpretation, it does not matter whether jury unanimity was necessary on whether a defendant discharged a firearm with intent, knowledge, or recklessness.  The court may look to the record of conviction to determine which of those alternatives the defendant pleaded to in order to determine whether the conviction satisfies the aggravated felony definition. The plea agreement in Chairez's case specified that he "knowingly discharged a firearm in the direction of any person," so the record of conviction satisfied the crime of violence aggravated felony definition in the Tenth Circuit.

Notably, though, the Board declined to retreat from its previous decision in Chairez, except in those circuits like the Tenth that understood the "elements" in Descamps to include what would normally be considered "means" that need not be agreed upon by a jury.  That emerging circuit split has the Tenth, First, and Third Circuits  one side and the Fourth, Ninth, and Eleventh on the other (although the Ninth Circuit did not faithfully apply the jury unanimity understanding of elements in a case involving a controlled substance--see Coronado v. Holder).  Chairez II held that the Board would apply the law of whatever circuit the removal proceedings occurred in or, if there is no controlling law, then the opinion in Chairez I.

Thus, in the First, Third, and Tenth Circuits defense counsel must be extremely careful about what ends up in the record of conviction.  Indeed, defense counsel in every circuit should do that, at least until the Supreme Court resolves the circuit split.  What does it mean to be careful about what ends up in the record of conviction?  Take Chairez's case for instance.  Since Utah apparently does not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness, it would seem perfectly acceptable to list all three in the plea statement.  Instead of "knowingly discharged a firearm in the direction of any person," the plea could read "intentionally, knowingly, or recklessly discharged a firearm in the direction of any person."  With the reckless alternative included, DHS could not meet its burden of proving deportability. Even better if you can get the prosecutor to agree to a plea that specifies only reckless conduct.

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The Board of Immigration Appeals held that unlawful sex with a minor aged 16 or 17 is an aggravated felony, even if the penal statute does not require lack of consent, if the offense requires as an element that the defendant be three or more years older than the victim.  It therefore held that a conviction for California Penal Code section 261.5(c) is an aggravated felony.  In reaching this conclusion (in a case arising in the Sixth Circuit), the Board stated its disagreement with the Ninth Circuit's en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

The Board stated its disagreement with Estrada-Espinoza, but its opinion failed to address the statutory construction argument that led the eleven circuit court judges to unanimously hold that California Penal Code § 261.5(c) is not an aggravated felony.  Getting eleven judges to agree on anything is difficult, but it is even harder when the case involves an immigrant charged with a sex offense (although it may have helped that the defendant and victim in Estrada-Espinoza were a boyfriend and girlfriend living together with the consent of both sets of parents).  The statutory construction argument that compelled the Ninth Circuit was that the aggravated felony of "sexual abuse of a minor," which is not defined in the Immigration and Nationality Act, should be drawn from the federal criminal definition of "sexual abuse of a minor" at 18 U.S.C. § 2243.  That federal criminal definition penalizes knowingly having sex with a minor under the age of 16 where there is a 4 year age differential.  It does not penalize consensual sex with a sixteen or seventeen-year-old, regardless of the age differential.  The Ninth Circuit found that since Congress has already supplied this definition for criminal purposes, it is the one that should be used for immigration purposes as well--unless the immigration statute specifies otherwise.  The Ninth Circuit also noted that sixteen is the age of consent in most states, as well as in the Model Penal Code (although some states, like California, set the age of consent at 18).  Thus, it would make no sense to impose the most severe immigration consequences for a conviction of conduct that would not even be criminal for federal purposes or in most states.

Although the Board did not address why it thought it had the authority to fashion a different definition of sexual abuse of a minor than the one enacted by Congress, it did cite social science research that shows an age differential of three or more years created a potentially coercive or exploitative situation that equals abuse.  It then provided examples of exploitative circumstances, such as where a high school teacher has a relationship with a student.  It also voiced its concern that a person may be convicted of Penal Code section 261.5(c) even where the victim is under sixteen and the age differential is substantially more than three years.  But Penal Code 261.5(c) is not the type of deal that a forty-year-old high school teacher would receive where he seduces a fourteen-year-old student.  California has a range of sex offenses, including 261.5(d), that are more likely in that type of egregious situation.

Whether a conviction is an aggravated felony should be determined based on the minimum conduct that has a realistic probability of being prosecuted, not on the worst possible scenario.  That is what the Supreme Court emphasized in Moncrieffe.  And for Penal Code section 261.5(c), there is a realistic probability of a prosecutor charging it in a far more benign situation than posited by the Board.  This is exemplified by Estrada-Espinoza itself, where a fifteen- or sixteen-year-old girlfriend lived with her twenty-year-old boyfriend in the home of his parents with the knowledge and consent of her own parents.  That is hardly a coercive or exploitative situation and it is one that would be entirely legal if they had gotten married (or had lived in another state).  That type of scenario hardly justifies the Board's disregard of Congress's statutory definition of sexual abuse of a minor.

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Attorney General Holder vacated Attorney General Mukasey's 2008 decision to authorize an unprecedented factual inquiry to determine whether a conviction involved moral turpitude.  In doing so, he recognized that five circuit courts of appeal had rejected the reasoning of that decision (while two had deferred to it). He also recognized the Supreme Court has repeatedly emphasized that convictions must be judged by their legal elements, not the alleged facts that led to them.

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The Board held that a conviction for recklessly engaging in deadly conduct in violation of section 22.05(a) of the Texas Penal Code is categorically a crime involving moral turpitude.  Section 22.05(a) provides, "A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury."  Recklessness for this purpose means the offender is "aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  The Board held that this conscious disregard to a substantial and unjustifiable risk of serious bodily injury to another always involves a base act that constitutes a crime involving moral turpitude.  It found the offense indistinguishable from the reckless endangerment offense in Matter of Leal, 26 I&N Dec. 20 (BIA 2012), which held that “recklessly endangering another person with a substantial risk of imminent death” is always a crime involving moral turpitude.

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In an unnecessary and disingenuous decision, the Ninth Circuit held in Torres-Valdivias v. Holder that the Board of Immigration Appeals correctly applied the heightened discretionary standard of Matter of Jean to deny adjustment of status to an immigrant convicted of misdemeanor sexual battery, even though the immigrant was not inadmissible for the conviction.

The Jean heightened discretionary standard requires a showing of extraordinary circumstances before granting a waiver of inadmissibility to an alien who has committed a violent or dangerous offense. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Jean was a refugee who had been convicted of manslaughter for shaking a baby to death.  When the former INS put her in removal proceedings, she applied for adjustment of status as a refugee.  She did not dispute that she was inadmissible to adjust status, but requested a discretionary 209(c) waiver to forgive her inadmissibility.  The immigration judge denied the waiver in the exercise of discretion.  The Board reversed and granted the waiver and adjusted her to permanent resident status.  The Attorney General at the time, John Ashcroft, disagreed with the Board and overruled it in a published opinion.  He established a new discretionary standard, which headnote 4 of the decision summarizes:

Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Thus, if you have committed a violent or dangerous crime, the agency will not grant you a discretionary waiver to adjust from refugee status to permanent resident status without extraordinary circumstances (and even then may not).  A later decision, Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), applied the same standard to asylees who apply to adjust from asylum status to permanent resident status.  No published Board decision, though, has ever applied the Jean standard to other types of applicants for adjustment of status, such as family-based or employment-based applicants.  Those applicants adjust pursuant to section 245 of the Immigration and Nationality Act, rather than section 209.

In an unpublished decision, however, the Board applied Jean to deny Torres-Valdivias's family-based application to adjust status.  It found that his misdemeanor conviction for sexual battery was a violent and dangerous crime that triggered the heightened discretionary standard, even though it did not make him inadmissible.  Torres-Valdivias was not inadmissible because his crime qualified for the petty offense exception--it was a misdemeanor with a sentence to imprisonment of not more than six months.   The Ninth Circuit affirmed the Board's decision.

The Board's unprecedented borrowing of a standard is dubious enough in an unpublished decision, but applying the Jean standard to an immigrant who was not inadmissible for his crime was even more questionable.  Remember the language of Jean?  It explicitly applied only to a "discretionary waiver" for inadmissibility (and then only for a refugee).  Torres-Valdivias did not require a waiver, so Jean should not apply.

The heightened standard that does apply to family-based immigrants like Torres-Valdivias is nearly identical to Jean, but by its own terms only applies where the immigrant is inadmissible for a crime and thus requires a waiver of inadmissibility under 212(h).  See 8 C.F.R. 212.7(d).  The regulation that contains this standard provides,

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

8 C.F.R. 212.7(d).  Thus, only immigrants who require a 212(h) waiver for criminal inadmissibility are subject to the heightened standard under 212.7(d).  And note that part 212.7(d) was issued under the same Attorney General--John Ashcroft--that decided Matter of Jean, and it was issued after the decision in Jean.  See 67 Fed. Reg. 45402, 45404 (Jul. 9, 2002) (proposed rule).  Indeed, the agency stated in the Federal Register that 212.7(d) was intended to codify Jean.  Id.

The Ninth Circuit blithely ignored all of this and affirmed the Board's unpublished decision.  In doing so, it effectively rendered 212.7(d) moot in the Ninth Circuit.  Under Torres-Valdivias, an immigrant may be denied adjustment of status under the heightened standard even where he is not inadmissible, while 212.7(d) only applies if the immigrant is inadmissible for a crime.  If Attorney General Ashcroft intended the interpretation of Jean adopted by the Ninth Circuit, why did he later promulgate a more narrow regulation at 212.7(d)?  The answer is that he did not intend the Ninth Circuit's interpretation.

At the beginning of this article, I made the inflammatory comment that the panel decision in Torres-Valdivias is not only wrong, but disingenuous, so I'll tell you why.  After the initial decision in the case, published on September 5, 2014, the American Immigration Council and the Immigrant Legal Resource Center filed amicus briefs in support of rehearing, and they were both represented by very able attorneys.  I am certain those attorneys raised the arguments summarized above, and perhaps even better ones.  Yet the amended opinion issued nine months later still asserted that Jean and K-A- compelled the decision, when in fact they don't and the implication of 212.7(d) is that the decision is entirely wrong.  I expect the panel ignored the arguments because of the bad facts in this case (the victim of Torres-Valdivias's sexual battery was his step-sister, who was four years younger than him).

I would say the opinion is results-oriented, except that this bad law was unnecessary.  There already was and still is a discretionary standard of long pedigree that applies to adjustment applications by all immigrants, admissible and inadmissible: the Board's published decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970).  Arai held, "Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities."  In other words, the favorable discretionary factors must outweigh the negative factors.  This standard is more flexible and carries less of a presumption toward denial, but it is more than adequate to support the denial of adjustment where appropriate.  In other words, the Board could have denied Torres-Valdivias adjustment under either standard, so the use of the wrong one may have caused no harm here.

Although the panel's decision may not have prejudiced Torres-Valdivias, the problem is that it turned the Board's minor error into a rule of law that will be applied to other cases throughout the Ninth Circuit.  And it is hard to see why it did so.  The prudent course would have been to remand the case to the Board for a reconciliation of JeanArai, and 212.7(d).  That is the Board's job, not the Ninth Circuit's.

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In Matter of Pina-Galindo, the Board found that the respondent was ineligible for cancellation of removal for a non-permanent resident under INA 240A(b)(1) because he had been convicted of two or more offenses with an aggregate sentence to confinement of 5 years or more.

The respondent was put in removal proceedings for being present without admission or parole.  He applied for cancellation of removal based on being physically present in the U.S. for 10 or more years and the hardship that removal would cause to a qualifying relative.  The immigration judge found him ineligible for cancellation because he had multiple alcohol-related convictions, including a conviction for driving while intoxicated for which he received a 10-year sentence. Non-permanent resident cancellation requires, among other things, that the applicant not be convicted of an offense listed at INA 212(a)(2).  Section 212(a)(2) lists several crime-based grounds of inadmissibility, including: crimes involving moral turpitude, controlled substance offenses, and multiple criminal offenses with an aggregate sentence to confinement of 5 years or more.  Pina-Galindo was found ineligible for having multiple convictions with an aggregate sentence to 5 or more years.

The respondent argued that the legislative history indicated that Congress only intended to disqualify applicants with convictions that involved moral turpitude or a controlled substance offense, since the Conference Report stated that only aliens inadmissible under INA 212(a)(2)(A) (the subsection covering crimes involving moral turpitude and controlled substance offenses) would be ineligible for cancellation.  The Board brushed aside that argument by supposing that the Conference Report likely referred only to the most common grounds of disqualification.

The respondent also argued that the language of the grounds of ineligibility for cancellation refer to a singular conviction under 212(a)(2), while multiple convictions are required for an offense to be described under the multiple conviction with 5 year aggregate sentence ground of inadmissibility.  The Board responded that the Dictionary Act (1 U.S.C 1) provides that for any Act of Congress the singular shall include the multiple unless the context requires otherwise.

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In Ferreira, the Board of Immigration Appeals held that conviction of a state controlled substances offense that, on its face, controls some substances not controlled by the federal Controlled Substances Act (in addition to some that are) establishes deportability unless the respondent establishes a realistic probability that the state would actually prosecute offenses involving the substances not covered by federal law.  This conclusion, however, is now in some doubt following the Supreme Court's later decision in Mellouli v. Lynch.

ICE put Ferreira, a lawful permanent resident, in removal proceedings after his conviction of section 21a-277(a) of the Connecticut General Statutes Annotated in 2010.  It charged he was deportable for a controlled substance offense and aggravated felony because section 21a-277(a) prohibits the sale of various controlled substances.  Ferreira argued ICE could not establish deportability because his conviction record did not specify what substance he sold and at the time section 21a-277(a) covered sale of two opiate derivatives (benzylfentanyl and thenylfentanyl) not listed in the federal Controlled Substances Act, in addition to many substances that do appear in the federal Controlled Substances Act.

The Board labeled the two non-covered substances "obscure" and held the immigration judge should have conducted fact-finding to determine whether the State of Connecticut would actually prosecute a person for sale of those substances.  It reached this conclusion based on its reading of the Supreme Court's decisions in Moncrieffe and Duenas-Alvarez, which held that the categorical approach was not an invitation to exercise "legal imagination." To defeat a charge of deportability, that precedent requires a the respondent to show that there is a realistic probability that a state would prosecute an offense that does not meet the generic definition.  The Board then asserted

Under that test, for the proceedings to be terminated based on this discrepancy between the Connecticut and Federal schedules, Connecticut must actually prosecute violations of section 21a-277(a) in cases involving benzylfentanyl and thenylfentanyl.

Thus, the Board expected Ferreira to cite an example of a prosecution for one of those substances.

The problem with the Board's approach is that it conflates obscurity with likelihood of prosecution.  Ferreira may not be able to provide an example of a Connecticut prosecution for benzylfentanyl or thenylfentanyl because they are not commonly abused drugs and thus are not commonly sold, particularly in a small state like Connecticut.  That does not mean, though, that Connecticut would not prosecute an offense involving one of those substances if given the chance.  Both substances are explicitly covered by the statute.  In other words, the fact that an offense is uncommon does not mean that a court would have to exercise legal imagination to say that it would be prosecuted.

The Supreme Court seemed to implicitly recognize this issue in its later decision in Mellouli.  Mellouli held that a Kansas conviction under an overbroad controlled substances offense does not establish deportability if the record of conviction does not establish the offense related to a substance covered by the federal Controlled Substances Act.  Mellouli did not address whether there was a realistic probability of Kansas prosecuting the substances that made the Kansas offense overbroad (salvia and jimson weed, which do not appear in the federal schedules).  This is a significant silence, since the Board had just a year earlier held in Ferreira that this must be addressed.  Why didn't the Supreme Court address it?  It did not explain.  It just said (at footnote 8) that the case did not require the Court to decide whether Ferreira applied the categorical approach correctly.

I would argue, though, that it takes no legal imagination to suppose that a state would prosecute an offense involving a controlled substance that is explicitly covered by statute or regulation.  The fact that a state has not yet had the opportunity to prosecute an offense involving the substance does not mean it would not.  This is what distinguishes Ferreira's situation from the concern raised by the Solicitor General in Moncrieffe--that the failure to explicitly exclude antique firearms from a state firearms statute would mean that it would not match the federal firearms definition even if the state does not actually prosecute antique firearms offenses.  Moncrieffe did not say that a state firearms statute that explicitly does cover antique firearms would not match the federal firearms definition merely because the state, perhaps a small one like Connecticut, has not had an opportunity to prosecute an antique firearms case yet.

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The Supreme Court reached the sensible decision in this case that a noncitizen is deportable for a drug paraphernalia conviction only if the government proves the conviction relates to a substance appearing on the federal controlled substances schedules.  This decision provides a valuable plea option for some minor drug cases, at least in states that control substances that do not appear on the federal schedules.

Here, Mellouli was arrested for DUI and at booking his sock was found to contain 4 pills.  At the time, he allegedly admitted they were Adderall and that he did not have a prescription.  In court, Mellouli pleaded guilty to possession of drug paraphernalia (the sock), but the drug that the paraphernalia charge related to was not specified in the charging document or his plea.  The identity of the substance thus was not established by the conviction. This is significant because Kansas law at the time controlled some substances that do not appear in the federal schedules, so simply having a paraphernalia conviction in Kansas did not establish a conviction relating to a federal controlled substance.

Relying on Matter of Martinez Espinoza, 25 I&N Dec. 118 (2009), the immigration judge and Board of Immigration Appeals held that the government did not need to prove that Mellouli's paraphernalia conviction related to Adderall or any other specified controlled substance. It was enough that the sock related to "the drug trade in general."

The Supreme Court disagreed and once again faithfully applied the categorical approach, as it has in a string of recent decisions.  The categorical approach requires that the elements of a conviction necessarily match the elements of a federal generic definition.  If there is no match, then there is no penalty--in this case, no deportability.  The text of the deportability statute here requires that a conviction "relat[e] to a controlled substance (as defined in section 802 of Title 21)."  If the conviction does not necessarily relate to a controlled substance as defined in section 802 of Title 21 (the federal Controlled Substances Act) because state law covers one or more substances not covered by federal law, then the noncitizen is not necessarily deportable.

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