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.