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.