Circuit Decisions on Controlled Substance Inadmissibility and Deportability

 

Introduction: Circuit Decisions on Controlled Substance Inadmissibility and Deportability

controlled substance inadmissibilityIn this article, we will review various precedential and unpublished decisions from the Second, Third, Fifth, and Ninth Circuits relating to controlled substance inadmissibility and deportability. The cases involve state statutes from New York, New Jersey, Pennsylvania, Texas, and California. The sampling of cases will both show how courts analyze state-level controlled substance statutes and some of the differences in precedents between the circuits. This is intended to be a companion article to our main piece on controlled substance inadmissibility and deportability, so please make sure to read that article for a fuller understanding of controlled substance inadmissibility and deportability [see article].

Relevant State Laws and Judicial Precedent

Whether a state controlled substance conviction will lead to a finding of inadmissibility or deportability generally depends on the nature of the specific statute. As always, because every situation is unique, an alien facing a situation involving controlled substances should consult with an experienced immigration attorney immediately.

It is important to note that circuit court precedent is only binding over areas under the circuit's jurisdiction. For example, the Second Circuit covers New York, Vermont, and Connecticut. Accordingly, a published decision by the Second Circuit is binding precedent on any cases arising from those three states. However, if a case arises in New Jersey, that would be subject to the jurisdiction of the Third Circuit instead, which covers New Jersey, Pennsylvania, and Delaware. While circuits cite each other constantly and may follow the reasoning of each other, they are only bound by precedent from the U.S. Supreme Court. This principle is especially relevant with regard to our discussion of Renteria-Gonzalez v. I.N.S., 322 F.3d 804 (5th Cir. 2002) in the section on the Fifth Circuit (which covers Texas, Louisiana, and Mississippi). Please note that unpublished decisions are not for precedent and are not binding on other cases.

New York and the Second Circuit

New York controlled substance laws are found generally in Section 220 and Section 221 (relating to marijuana) of the New York Penal Law Code.

In Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007) [PDF version], the Second Circuit found that an alien who had been convicted of criminal solicitation in the Fourth Degree (N.Y. Penal Law 100.5(1)) was inadmissible under section 212(a)(2)(A)(i)(II) of the INA. In the case, the alien argued that his conviction did not render him inadmissible because N.Y. Penal Law 100.5(1) includes solicitation to commit felony crimes that do not involve controlled substances. However, the Second Circuit rejected the his arguments because it found that N.Y Penal Law 100.5(1) requires that the evidence for a criminal solicitation conviction at any degree level “must establish the defendant's specific intent to solicit the commission of a particular crime.” Therefore, the Second Circuit analogized N.Y. Penal Law 100.5(1) to a divisible statute. In this case, the object felony of the solicitation was a drug offense defined in N.Y. Penal Law 220.31 (criminal sale of a controlled substance), which had to be proven in order for him to be convicted under N.Y. Penal Law 100.5(1). In Mizrahi we find that a conviction for solicitation to commit a felony in New York can support a finding of drug-related inadmissibility or deportability so long as the specified object felony of the solicitation is categorically a drug-related offense that would cause inadmissibility or deportability. To learn about the terms “divisible” and “categorical,” please read our article about Descamps v. United States [see article].

In an unpublished decision titled Ruiz v. Mukasey, 272 Fed.Appx. 107 (2d. Cir, 2008), the Second Circuit upheld the Immigration Judge's decision to deny continuance in proceedings in an application for cancellation of removal after the petitioner had been pled guilty to violating N.Y. Penal Law 220.03 (criminal possession of a controlled substance in the seventh degree). Although the charging documents in the case specified marijuana and cocaine, the offense that the petitioner ultimately pled guilty to only specified a “controlled substance” which under N.Y. Penal Law 220.03 does not include marijuana.

New Jersey, Pennsylvania, and the Third Circuit

The Third Circuit held in Wilson v. Ashcroft, 350 F.3d 377 (3d. Cir 2003) [PDF version] that an alien who was convicted under N.J. Stat. Ann. 2C:35-5b(11) (for “possession with intent to distribute” more than 28 grams of marijuana) was not eligible for a section 212(h) waiver because a conviction for “intent to distribute” is more than “simple possession” regardless of the amount of marijuana involved.

In an unpublished decision by the Third Circuit titled Gul v. Attorney General of the U.S., 385 Fed.Appx. 241 (3d. Cir 2010), the Third Circuit held that an alien who was convicted under N.J. Stat. Ann. 2C:33-2.1(b) for loitering for the purpose of obtaining a controlled substance “was categorically a violation of a state law relating to a controlled substance” because the state statute was “relating to” a federal controlled substance.

In Acosta v. Aschroft, 341 F.3d 218 (3d Cir. 2003) [PDF version], the Third Circuit found that an alien who pled nolo contendere (no contest) to charges of possession 0.36 grams of heroin (Pa. Stat. Ann. Tit. 35, 780-113), had the charges dismissed under 35 Pa. Cons. Stat. Ann. 780-117, and was sentenced to one year of probation without verdict was deportable. The Third Circuit followed Acosta in its unpublished decision Richards v. Attorney General of the U.S., 149 Fed.Appx. 114 (3d. Cir. 2005) where an alien pled nolo contedere to charges of possession of cocaine (35 Pa. Cons. Stat. Ann. 780-113(a)(16)) and a small amount of marijuana (35 Pa. Cons. Stat. Ann. 780-113(a)(31)) and was sentenced to probation without verdict. Accordingly, it is important to remember that under the Acosta precedent, pleading no contest to drug offenses that would cause inadmissibility or deportability will likely result in adverse immigration consequences even if the alien is only sentenced to probation.

In Rachak v. Attorney General of the U.S., 734 F.3d 214 (3d Cir. 2013) [PDF version], the Third Circuit held that a conviction for possession of a small amount of marijuana under 35 Pa. Cons., Stat. Ann. 780-113(a)(31)) severed lawful presence for purpose of accruing 7 years of continuous presence for eligibility for LPR cancellation of removal, and the mere fact that the alien may have been eligible for a section 212(h) waiver was irrelevant in removal proceedings because he had not sought the waiver before DHS beforehand.

Texas and the Fifth Circuit

In an unpublished decision titled Gaona-Romero v. Gonzales, 207 Fed.Appx. 386 (5th Cir. 2006), the Fifth Circuit upheld a final order of removal against an alien who had been convicted for possession of marijuana and fined, but then had the conviction vacated because his guilty plea was found to have not been “knowingly a voluntarily entered.” The Fifth Circuit upheld the BIA's decision in accordance with its precedent decision in Renteria-Gonzalez v. I.N.S., 322 F.3d 804 (5th Cir. 2002) [PDF version] in holding that a vacated conviction may serve as the basis for an inadmissibility or deportability finding. However, it is worth noting that no other circuit follows Renteria-Gonzalez in full and rather most follow the Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) [PDF version] “which distinguishes between convictions vacated for sustentative or procedural error and those vacated for rehabilitative purposes.” For any immigration proceedings under the Fifth Circuit, is important to remember that vacated convictions can be used.

In Rana v. Holder, 654 F.3d 547 (5th Cir. 2011) [PDF version], the Fifth Circuit held that an alien who had been convicted of possession of a small amount of marijuana, obtained a section 212(h) waiver of inadmissibility, and was subsequently convicted of a second offense of possessing less than two ounces of marijuana was ineligible for a second 212(h) waiver. This is because a 212(h) waiver merely waives inadmissibility for a single marijuana offense but does not waive the offense itself. In Rodriguez-Benitez v. Holder, 763 F.3d 404 (5th Cir. 2014) [PDF version], the Fifth Circuit held that an alien who had a conviction for a small amount of marijuana was inadmissible under section 212(a)(2)(A)(i)(II) and therefore ineligible for VAWA cancellation of removal.

California and the Ninth Circuit

In Esquivel-Garcia v. Holder, 593 F.3d 1025 (Jan 28, 2010) [PDF version], the Ninth Circuit remanded a case to the BIA where the alien had been found removable after a conviction for possession of a controlled substance under California Health and Safety Code sec. 11350 both because the conviction did not specify the substance (notwithstanding the alien testifying before the IJ that “I think it was heroin”) and because the statute proscribed substances that are not on the federal schedules.

In an unpublished decision titled Reyes-Floriano v. Mukasey, 289 Fed.Appx. 199 (9th Cir. 2008), the Ninth Circuit held that a conviction under California Vehicle Code section 23152(a) for driving-under-the-influence of drugs does not trigger deportability under section 237(a)(2)(B)(i) of the INA because the statute “does not identify any particular controlled substance” and therefore could include substances that are not on the California schedules but not on the federal schedules.

In Cabantac v. Holder, 736 F.3d 787 (9th Cir. 2013) [PDF version], the Ninth Circuit held that an alien who had been convicted of violating California Health and Safety Code 13777(a) for drug possession, which was a categorically overbroad statute (in that it includes substances not on the federal schedules) was correctly found to be inadmissible because the record established that he had pled guilty to the possession of methamphetamine (a federal controlled substance). In so doing, the Ninth Circuit followed Descamps but applied the modified categorical approach in looking at the facts in the record underlying the conviction. The Ninth Circuit followed relevant precedent from its prior decision in Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007) [PDF version].

In an interesting decision regarding foreign controlled substance violations, the Ninth Circuit held in Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) [PDF version], that an alien who admitted in a psychiatric examination as part of his application for an immigrant visa that he had used marijuana for three years while in the Philippines was excludable (under current law, “inadmissible”). Although the alien was never convicted of a controlled substance violation in the Philippines, the Ninth Circuit found that the alien had admitted to committing acts which constitute the essential elements of a violation of Republic Act No. 6245 in the Philippines.

Conclusion: Circuit Decisions on Controlled Substance Inadmissibility and Deportability

The various precedential and unpublished decisions discussed in this article show the variety of factors complicating immigration law with respect to controlled substance violations. Every case is circumstance-specific and will depend on the nature of the alleged violation, the state (or foreign) statute in question, and the controlling administrative and judicial precedents in the jurisdiction where the case arises. As we discuss in our full article on controlled substance inadmissibility and deportability, it is imperative that a noncitizen facing issues related to controlled substances consult with an experienced immigration attorney in order for guidance in navigating his or her unique situation in a way that may preserve future immigration options if at all possible.