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Category: Controlled Substance Offenses

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The Ninth Circuit held that an abstract of judgment for a California Health and Safety Code section 11377(a) conviction that indicates a plea to a criminal count that identifies the substance as a regulated substance under the federal Controlled Substances Act (here, methamphetamine) satisfies the government's burden to prove removability for conviction of a controlled substance offense. It held this was the case even where the abstract itself does not identify the substance (here, counsel for the immigrant obtained amendment of the abstract to remove its specification of the controlled substance).

The panel further disregarded the fact that Cabantac's plea was pursuant to West/Alford because the plea transcript identified the substance as methamphetamine.

The lesson? Correct an abstract of judgment early in the removal proceedings if necessary, but that may not be enough if competent immigration counsel was not involved at the time of the criminal proceedings. (A shameless plug to consult with an attorney such as myself!)

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The Board held that a conviction by a municipal court in Wichita, Kansas, for a violation of a municipal controlled substance ordinance is a conviction for immigration purposes because the proceedings were "genuine criminal proceedings." The respondent was fined and jailed for possession of marijuana in a municipal court. He later was convicted in a state court of a felony for possession of marijuana with a prior municipal court conviction. ICE then initiated removal proceedings, alleging removability for a controlled substance offense and for an aggravated felony. It alleged his possession with a prior conviction was an aggravated felony.

The respondent raised several arguments to attack the validity of the underlying municipal court judgment. The Board rejected the respondent's first argument that the municipal court proceedings were not genuine because there was no absolute right to counsel. Witchita apparently provides a right to appointed counsel only in municipal court cases where there is a possibility of incarceration, but not otherwise. The Board found this was consistent with the constitutional right to counsel for indigent persons, so it did not agree that the proceedings were not genuine. (It is unclear whether he actually had counsel or not, but he would appear to have the right to it because he received a sentence to incarceration for the municipal conviction.)

The respondent further argued that his lack of counsel (or advisement by the judge) deprived him of information about the potentially serious immigration consequences of his municipal court plea. The Board treated that as a collateral attack against the judgment, rather than as an argument that the proceedings were not genuine. As such the Board held that the respondent needed to make the argument to the criminal court, not to the Board. (Again, this argument is curious since he apparently did have a right to counsel.)

The respondent also argued that convictions in the Witchita municipal courts were not genuine because there is no right to jury trial on the charges. However, there is a right to trial de novo before a jury in a state district court if the municipal court finds the defendant guilty. The Board found this right to request a new trial if the defendant is dissatisfied is enough.

Additionally, unlike the Oregon procedures in Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004), Witchita municipal proceedings require the prosecutor to prove the offense beyond a reasonable doubt. The proceedings thus were genuine by that measure as well.

The impact of this case goes far beyond Witchita convictions, though. The reasoning behind it strongly indicates that California infractions will be considered convictions for immigration purposes as well. There had been some hope that Eslamizar signaled an intent to not treat infractions as convictions, particularly since in California there is no right to appointed counsel for them. Cuellar-Gomez dispels that hope. Further, California requires proof beyond a reasonable doubt for infraction convictions, so that argument from Eslamizar does not apply either.

The respondent in Cuellar-Gomez also argued that his municipal conviction could not support ICE's charge of removability under section 237(a)(2)(B)(i) for being "convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." He was convicted under a municipal ordinance, not any law or regulation of a State. The Board rejected that argument because a municipality is a creature of the state, so its laws are laws of the state.

Finally, the Board held that Cuellar-Gomez's conviction was an aggravated felony because it corresponds to a federal felony under the Controlled Substances Act for recidivist possession, 21 U.S.C. § 844(a). As required for a federal recidivism felony, the prior conviction was final and respondent received advance notice of the enhancement for having a prior conviction.

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The Ninth Circuit held that a stipulated facts trial is functionally equivalent to a guilty plea for purposes of eligibility for 212(c) under the Supreme Court's decision in St. Cyr. In this case, the noncitizen was charged with heroin importation and possession with intent to distribute. She had brought the heroin back to the U.S. in 1980 after using it in Thailand to manage pain from a surgery she had there. In the criminal proceedings, she waived many of her constitutional rights and agreed to a court trial where she stipulated to possession of $100k worth of heroin with the intent to use it exclusively for herself. The criminal court found her guilty of importation and not guilty of possession with intent to distribute.

DHS put her in removal proceedings in 2005 based on inadmissibility for a controlled substance offense. The immigration judge and BIA found her ineligible to waive her inadmissibility under former section 212(c), which was repealed in 1996. She would have been eligible for 212(c) if she had been put in exclusion proceedings 20 years earlier, and clearly would be eligible even now--if she had entered a guilty plea. Given retroactivity concerns, the Supreme Court determined in St. Cyr that 212(c) remains available for persons who pled guilty prior to its repeal because they presumably would be relying on its availability when they gave up their constitutional rights. The BIA held this case was distinguishable because the Tyson had a court trial instead of pleading guilty.

The Ninth Circuit held that a stipulated facts trial in these circumstances was more like a guilty plea than a contested court or jury trial, since her stipulation virtually assured her conviction on the importation count. In fact, the panel found it was akin to a no-contest plea, which the regulations specifically recognize preserves 212(c) eligibility. 8 C.F.R. § 1212.3(h). The fact that the record evidence of quid pro quo for the plea is weak is not determinative, although the government did benefit by saving resources and she received a relatively light plea.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/01/27/08-70219.pdf.

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In this opinion, the Ninth Circuit explains the evidentiary standard for inadmissibility under INA § 212(a)(2)(C) for being an alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the same. The question is who must have the necessary “reason to believe” and at what time.

The court held that the reason to believe must be collectively known by the officials adjudicating the question of admissibility. At the time of entry, that would be the CBP inspector and any other appropriate officials within one of the DHS agencies. If the inspector does not admit the noncitizen and instead puts him or her into removal proceedings for inadmissibility, then the immigration judge (or BIA, once on appeal) is the official that must have reason to believe. In the latter situation, the IJ and BIA are not limited to the facts known at the time the noncitizen's inspection at the port of entry. Later obtained evidence, the respondent's testimony, and even expert testimony may be considered. The court then will review the decision of the IJ and the BIA for substantial evidence.

The court also found that, although the credibility of the noncitizen was important, it did not need to deem the testimony credible in the absence of an explicit adverse credibility finding.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/06-70635.pdf

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Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

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"Clarifying" its previous opinion in Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010), the Ninth Circuit held that a noncitizen's admissions in removal proceedings could establish the link between the offense alleged in a charging document and an abstract of judgment for purposes of determining whether the conviction was for a removable offense.

S-Yong had held that admissions alone were not sufficient to meet the government's burden of proving removability (the record did not contain any conviction documents in that case). The government in Pagayon, however, did present a charging document alleging possession of methamphetamine and an abstract of judgment that indicated conviction of Health and Safety Code sec. 11377(a) for possession of an unspecified drug.

The Ninth Circuit held that Pagayon's response that possession of methamphetamine was his conviction met the government's burden of establishing that the conviction was for a deportable controlled substance offense. (Not all drug convictions involve substances that trigger deportability under federal law.)

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/07-74047.pdf

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The Board held that, if the seven year period of continuous residence stops for 240A(a) cancellation of removal, it does not restart again based merely on a departure from and reentry to the U.S.  A key fact in this case, however, is that the conviction that stopped Nelson's period of continuous residence also made him inadmissible at the time of his reentry to the U.S.  There also was no claim that he obtained a waiver of that inadmissibility.  The Board reserved deciding whether the result would have been the same if he had been readmitted with a waiver.  The Board also attached some significance to the fact that the conviction was charged as a basis for removability (in addition to other grounds of removability), although it did not explain the exact relevance of this fact.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3704.pdf

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