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Jose Reyes Ruiz-Vidal was not quite as lucky in his second published decision from the Ninth Circuit as he was in his first, Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007). In the second decision, the Ninth Circuit held that he was deportable for a conviction for California Health & Safety Code 11377(a). The case is significant because the court held that a charge originally filed against a defendant narrows a plea to a lesser included offense under the modified categorical approach.

In 2009, Jose Reyes Ruiz Vidal was charged in a felony information with sale of a controlled substance in violation of California Health & Safety Code (HS) 11379(a), "to wit: methamphetamine." He later pleaded no contest to HS 11377(a), simple possession of a controlled substance. The plea transcript and minute order for the hearing indicated that the plea to 11377(a) was as a lesser included offense to the 11379(a) charge, which had referenced methamphetamine.

The Ninth Circuit previously held in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) that HS 11377(a) is not categorically a controlled substance offense, since it covers at least one or two substances not covered by the federal Controlled Substances Act. However, it found the offense was divisible. That means a court can review certain record of conviction documents to determine if the conviction actually involved a federal controlled substance.

Methamphetamine is definitely a federal controlled substance, so the question in Ruiz-Vidal was whether the specification of meth in the sale charge meant that the lesser included plea to simple possession was also for meth. Judge Kozinski said yes, finding that the specification of a particular substance in the original charge meant that a lesser included plea must be to that same substance. That is common sense, although Judge Reinhardt's dissent demonstrates why it is not legally correct. Regardless, it is now the law of the Ninth Circuit, since the court denied en banc rehearing and the Supreme Court denied the cert petition. Criminal defense counsel beware.

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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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The Board of Immigration Appeals held that the exception to the controlled substance ground of deportability for a "single offense involving possession for one's own use of thirty grams or less of marijuana" is a factual question that may be decided by an immigration judge if the record of conviction is not conclusive. In other words, it is a "circumstance specific" inquiry.  It is not a categorical inquiry, where the only question is whether the legal elements of an offense match a federal definition.

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The Ninth Circuit upheld a finding of deportability for conviction of an offense relating to a substance prohibited by the federal Controlled Substances Act because circumstantial evidence established that a document in the record was the factual basis for the plea and that factual basis established the conviction involved methamphetamine.  In the underlying criminal case, Juarez-Alvarado pleaded guilty to Arizona Revised Statute § 13-3407(A)(1), but not as originally charged in the indictment returned against him.  He pleaded to count 1 as modified.  The Ninth Circuit therefore held that the government could not establish he was deportable by relying on the original indictment.  However, the government also presented a document from the court record (lacking a title or date) that purportedly was the factual basis incorporated into the plea.  Juarez-Alvarado disputed that it was.  The court considered the circumstantial evidence in the record (of page numbering, location of certification stamps, etc.) and found that the document indeed was the "attached description of the statutory elements and factual basis" referenced by the guilty plea.  Since that document indicated the conviction was for possession of methamphetamine, the court found it established deportability.

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The Ninth Circuit held that the petitioner's conviction for “Attempted Promoting a Dangerous Drug in the First Degree,” in violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-1241(1)(b)(ii), was not categorically a deportable controlled substance offense. It reached this conclusion because the relevant Hawaii controlled substance schedules include two substances, benzylfentanyl and thenylfentanyl, that are not currently listed in the federal Controlled Substances Act.

Although not a categorical controlled substance offense, the court applied the modified categorical analysis because it found the offense divisible pursuant to Coronado v. Holder. The record of conviction did not identify the substance, though, so the government could not meet its burden of proof.

The court thus found Ragasa was not deportable as charged. That was a good thing, since it rejected his claim to citizenship based on adoption by two naturalized citizens in 1980.

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The Ninth Circuit issued an opinion finding that the controlled substance schedules referenced by California Health and Safety Code (CHSC) 11377 (as well as 11378 and 11379) are not a categorical match for the federal controlled substance schedules. Specifically, it found khat (Catha Edulis) appears on the California schedules, but that the federal courts have held it is not covered by the federal schedules. Likewise, chorionic gonadotropin (HGC) is listed on the California schedules, but is not listed on the federal ones. That means a conviction under CHSC 11377(a) does not categorically make a noncitizen inadmissible or deportable for a conviction relating to a federal controlled substance.

The respondent had further argued CHSC 11377(a) was not divisible pursuant to Descamps v. United States and thus could never trigger inadmissibility or deportability, regardless of the record of conviction. Unfortunately, the Ninth Circuit rejected that argument and held it could conduct a modified categorical analysis to see if the record of conviction establishes the conviction was for a federal controlled substance. The charge in this case alleged only one controlled substance, methamphetamine (obviously a federal controlled substance), and the clerk's docket reflected conviction on the charge, so the court held the government established inadmissibility under the modified categorical approach. It found a clerk's docket for a misdemeanor case was just as reliable as a minute order, which the court previously had held could be used under the modified categorical approach. Of course, clerk's dockets and minute orders often do contain errors, but presumably it found them reliable because a defendant may inspect and correct them if they are not accurate. I say presumably because the court did not explicitly say so here.

The court did remand the case to the Board, however, because it failed to address his pro se claims on appeal that his previous attorney was ineffective and that the immigration judge did not act as a neutral fact-finder, which might have impacted his application for cancellation of removal.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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The Ninth Circuit held that a conviction under California Health and Safety Code section 11359, possession of marijuana for sale, is categorically a controlled substance offense for purposes of inadmissibility. This seems obvious, but the panel says the petitioner argued that 11359 could involve the sale of other substances besides marijuana that are not covered by the federal law. It rejected the argument because the petitioner apparently did not provide any citations to a case where that had occurred and because it seemed "facially implausible."

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This case is a welcome clarification of the exception to section 237(a)(2)(B)(i), the controlled-substance ground of removability, where the respondent’s conviction is for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”

The respondent in this case was convicted in 2010 of simple possession of less than 10 grams of marijuana and possession of drug paraphernalia (specifically, a plastic baggie in which the marijuana was contained) in violation of Arizona law. In bond proceedings, the DHS asserted that the convictions made the respondent removable under section 237(a)(2)(B)(i) and thus subject to mandatory detention under section 236(c)(1)(B). The Immigration Judge disagreed, finding that the respondent was not removable under section 237(a)(2)(B)(i) because her convictions fell under the simple-possession exception.

On appeal of the custody determination, the Board rejected the government’s argument that the respondent could not benefit from the exception to section 237(a)(2)(B)(i) because she had been convicted of two separate state offenses. The Board held that the term “single offense” in section 237(a)(2)(B)(i) describes the totality of an individual’s acts on a single occasion, rather than a generic crime, and thus calls for the “circumstance-specific” approach adopted by the Supreme Court in Nijhawan v. Holder, 557 U.S. 29 (2009). The Board held that the exception therefore applies to an individual convicted of more than one statutory offense so long as each offense arose from a single act of simple marijuana possession. The Board further held that the individual need not even have been convicted of simple marijuana possession to qualify for the exception: the exception applies to a conviction, such as possession of drug paraphernalia, if the acts that led to it were closely related to simple possession or ingestion of 30 grams or less of marijuana.

Lastly, the Board rejected the government’s argument that the respondent’s record of conviction left open the possibility that the marijuana baggie was possessed for purposes of sale, not possession. The Board reaffirmed prior case law holding that, to establish removability under section 237(a)(2)(B)(i), the government bears the burden of proving the conviction in question does not fall under the simple-possession exception and that an inconclusive record will not satisfy the burden.

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