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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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