- Introduction: Circuit Precedent on Drug Trafficking Inadmissibility and Deportability
- Relevant State Laws and Judicial Precedent
- Conclusion: Circuit Precedent on Drug Trafficking Inadmissibility and Deportability
In this article, we will review multiple precedential and unpublished decisions relating to drug trafficking inadmissibility and deportability from the Second, Third, Fifth, and Ninth Circuits. The cases we will look at arise from state convictions in New York, Connecticut, New Jersey, Pennsylvania, California, and Arizona. The selection of cases will shed light on various issues relating to the inadmissibility and deportability grounds for trafficking in controlled substances and will furthermore show how circuits have interpreted various state-level controlled substance statutes in the immigration context. This article is intended to be a companion piece to our main article on inadmissibility and deportability for trafficking in controlled substances, so please make sure to read that article first for a full understanding of the relevant immigration provisions [see article].
Whether a state statute leads to a finding of inadmissibility or deportability based on trafficking in controlled substances will always depend on the nature of the conviction, the language of the statute, and controlling law in that jurisdiction. Because every situation is unique, it is always imperative that an alien consult with an experienced immigration attorney.
Circuit court precedent is only binding over courts under the jurisdiction of that circuit. For example, a precedential ruling by the Second Circuit is binding on New York, Vermont, and Connecticut, but a case arising out of New Jersey falls under the jurisdiction of the Third Circuit. While circuits cite each other and sometimes follow each other's reasoning, the precedent of one circuit is not binding on another. Circuits are however all bound by precedent from the Supreme Court. Furthermore, it is important to note that unpublished decisions are not binding precedent even within the circuit from which they arise.
In Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013) [PDF version], the Second Circuit held that a conviction under New York Penal Law (NYPL) 220.39(1) for third-degree criminal sale of a controlled substance (cocaine) is categorically an immigration aggravated felony. Interestingly, the decision notes that the Fifth Circuit, in the unpublished decision Davila v. Holder, 381 Fed.Appx. 413 (5th Cir. 2010), held that a conviction under NYPL 220.41 (second-degree criminal sale of cocaine) is not an immigration aggravated felony because the statute also punishes “offers to sell.” However, the Second Circuit explained that under its precedent, an “offer to sell” would still constitute an aggravated felony.
In Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003) [PDF version], the Second Circuit found that a Connecticut (also under the Second Circuit) conviction under Conn. Gen.Stat. 21a-277(a) for illegal manufacture, distribution, sale, prescription, or dispensing of controlled substances is categorically for an aggravated felony (contrary to several unpublished BIA decisions predating to Gousse). In this case, the alien argued that Conn Gen.Stat. 21a-277(a) was not a categorical aggravated felony because the statute included a substance that was not on the list of federal controlled substances at the time his conduct occurred. However, the Second Circuit rejected this line of argument because the substance in question was added to the federal schedules before removal proceedings against the alien were initiated. Also of note, the Second Circuit conducted its analysis in light of the alien having entered an Alford Plea to the charges, meaning that he did not admit to the facts of the plea.
Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) dealt with the recidivist offender provisions of the CSA. Under federal law found in 21 U.S.C. 844(a), a person who commits a drug possession offense after “a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any state, has become final, he shall be sentenced to a term of imprisonment for … not more than 2 years” (passage excerpted from Alsol). However, 21 U.S.C. 851(a)(1) requires that the government states in writing the previous conviction(s) it is relying upon in order for enhanced sentencing penalties to trigger. In Alsol, the Second Circuit found that an alien who was convicted twice for violating NYPL 220.03 (possession of a controlled substance in the Seventh Degree) had not been convicted of an aggravated felony because the second conviction did not rely upon her being a recidivist offender. In so doing, the Second Circuit followed the BIA precedent found in the Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) [PDF version] which held that for an aggravated felony to trigger in this situation, the second conviction must have a recidivist element that mirrors the federal provision. Please note that this decision is consistent with the subsequent Supreme Court precedent on the issue found in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) [PDF version].
In Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) [PDF version], the Second Circuit held that an alien who had been convicted for violating NYPL 221.40 (criminal sale of marijuana in the fourth degree) had not been convicted of an aggravated felony because the statute covered “distribution of very small quantities of [marijuana].” The statute references NYPL 221.35 which punishes the sale of two grams or less or a single marijuana cigarette. Furthermore, section 221.40 covers any transfer of marijuana regardless of whether the transfer was for money. Federal law found in 21 U.S.C. 841(a)(1) makes it a felony to “knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to distribute, or dispense marijuana.” However, as we discussed in Moncriefe [see discussion], 21 U.S.C. 841(b)(4) categorizes as a misdemeanor an offense where a person distributes a small amount of marijuana for no remuneration. Because NYPL 221.40 and 221.35 do not make this distinction, the statutes were found to be categorically overbroad and therefore not constitute an immigration aggravated felony. The Second Circuit also held that the burden does not lie with the alien to demonstrate that his or her state conviction would be for a federal misdemeanor rather than for a federal felony.
In Catwell v. Attorney General of the U.S., 623 F.3d 199 (3d Cir. 2010), the Third Circuit held that an alien who was convicted under 35 Pa. Stat. Ann. 780-113(a)(30), specifically for possession of 120.5 grams of marijuana, had been convicted of an aggravated felony. Of note, the Third Circuit held that the statute is divisible “because it describes 'three distinct offenses: manufacture, delivery, and possession with an intent to deliver or manufacture.'” Accordingly, the Third Circuit looked at the facts of the conviction, specifically the amount of marijuana that the alien possessed, and determined that he would not have been eligible for an exception under 21 U.S.C. 841(b)(4). However, in Evanson v. Attorney General of the U.S., (3d Cir. 2008) [PDF version], the Third Circuit held that an alien convicted for violating that same statute had not committed an aggravated felony. In this case, the Third Circuit applied the modified categorical approach but found that the BIA erred in its appeal to the record of conviction because there was no proof that Evanson's offense did not fall outside of the exception found in 21 U.S.C. 841(b)(4). This decision followed directly Jeune v. Attorney General of the U.S., 476 F.3d 199 (3d Cir. 2007) [PDF version] which held that 21 U.S.C. 841(b)(4), without facts that indicate otherwise, does not categorically constitute an aggravated felony.
In Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003) [PDF version] the Third Circuit held that a conviction for violating N.J. Stat. Ann. 2C:35-5b(11) for “Manufacturing, Distributing, or Dispensing” a dangerous controlled substance or controlled substance analog was not categorically an aggravated felony. In this case, the Second Circuit held that because N.J. Stat. Ann. 2C:35-5b(11) does not contain an element of remuneration, a mere conviction under the statute without further information does not preclude the possibility that the conviction falls under the 21 U.S.C. 841(b)(4) exception.
In an unpublished decision, the Third Circuit found in Rodriguez v. Attorney General of the U.S., 517 Fed.Appx. 82 (3d Cir. 2013) [PDF version] that a conviction under N.J. Stat. Ann. 2C:35-5(a)(1) for manufacturing, distributing, dispensing, or possessing less than one-half ounce of cocaine is categorically an aggravated felony. The statute states that it is unlawful “[t]o manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog.” The Third Circuit found that this statute is analogous to the CSA provision found in 21 U.S.C. 841(a)(1). Accordingly, since this did not relate to a marijuana offense, the conviction was categorically for an aggravated felony.
In Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. 2007) [PDF version], the Fifth Circuit held that a conviction under TEXAS HEALTH & SAFETY CODE 481.121(b)(5) for possessing between 50 and 2000 pounds of marijuana is not an aggravated felony. Following the Supreme Court decision in Lopez v. Gonzales, 1727 S.Ct. 625 (2006) [PDF version], the Fifth Circuit held that because the Texas statute did not contain “an element of commerce,” it was not an offense that would be punishable under the CSA.
In Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. 2009) [PDF version], the Fifth Circuit held that a conviction under TEXAS HEALTH AND SAFETY CODE ANN. 481.112(a) for possession with intent to deliver cocaine is an aggravated felony. The statute states that “a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.” In so doing, the Fifth Circuit relied upon its decision in United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) [PDF version] which held that the statute constitutes a “controlled substance offense” under the CSA. Interestingly, however, the decision acknowledged that the result in Vasquez-Martinez v. Holder is at tension with Fifth Circuit decisions in U.S. v. Gonzales, 484 F.3d 712 (5th Cir. 2007) [PDF version] and U.S. v. Morales-Martinez, 496 F.3d 356 (5th Cir. 2007) [PDF version], both of which held that the Texas statute is categorically overbroad and encompasses offenses that are not included in the CSA. Gonzales held that because the statute includes “offer to sell,” it is categorically overbroad whereas Morales-Martinez held that “delivery” is defined more broadly in the Texas statute than the CSA's definition of drug trafficking offense. Although the Court stated in Vasquez-Martinez that it was bound by its decision in Ford, the issue has yet to be fully resolved by the Fifth Circuit. Also of note, the Fifth Circuit placed the burden upon the alien for proving that he had not been convicted of an aggravated felony, which differs from the Second Circuit in Martinez v. Mukasey (recognized to an extent in Le v. Lynch, — F.3d ——, (5th Cir. 2016) [PDF version]).
In Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014) [PDF version], the Ninth Circuit held that a conviction for possession of marijuana for sale under California Health and Safety Code (CHSC) 11359. The statute itself states “[e]very person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment… [of up to three years].” Applying the categorical approach, the Ninth Circuit found that because possessing for sale is an essential part of the statute, the conduct proscribed by the statute is a categorical match with the federal provision under the CSA found in 21 U.S.C. 841(a).
In Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. 2010) [PDF version], the Ninth Circuit found that a conviction in violation of CHSC 11383(c)(1) for possession of pseudoephedrine with intent to manufacture methamphetamine or any of its analogs was an aggravated felony. The Ninth Circuit applied the categorical approach and followed its precedent from Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008) [PDF version] to determine whether the state statute was a categorical match with a federal statute under the CSA. The Ninth Circuit found that conduct proscribed by CHSC 11383(c)(1) is categorically punishable under 21 U.S.C. 841(c)(1). In so doing, the Ninth Circuit rejected the alien's argument that CHSC 11383(c)(1) was not an aggravated felony because it did not proscribe a minimum amount of pseudoephedrine because the corresponding federal statute had no such requirement.
In Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004) [PDF version], the Ninth Circuit held that in order for a state controlled substance conviction to constitute an aggravated felony for trafficking in controlled substances, the conduct proscribed by the state offense must be punishable as an felony under the CSA or contain a trafficking element. In the instant case, the alien had been convicted of violating Ariz.Rev.Stat. 13-3407 for possession of methamphetamine. Under the Arizona statute, the maximum punishment was for two years, making it an aggravated felony under Arizona law. However, under 21 U.S.C. 844(a), the maximum punishment is only one year “and thus is not a felony under federal law.” In its conclusion, the Ninth Circuit stated that “a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of 'drug trafficking crime,' or is a crime involving a trafficking element.”
In Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999) [PDF version], the Ninth Circuit held that a conviction for solicitation to possess marijuana under Arizona statutes Ariz.Rev.Stat. 13-1002(A) and 13-3405(A)(2)(B)(5) was not an aggravated felony. This decision was based on the Ninth Circuit finding that “[t]he [CSA] does not mention solicitation.” In short, the Ninth Circuit held that a generic solicitation statute could not constitute an aggravated felony for drug trafficking. Leyva-Licea was distinguished by the Ninth Circuit in Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) [PDF version] which limited it to generic solicitation statutes.
The selection of cases in this article are intended to provide a broad sampling of how various circuits have interpreted state laws with respect to the provisions of the INA regarding trafficking in controlled substances. However, it is important to remember that each case is fact-specific and depend on a variety of factors. If a noncitizen is facing any drug-related issues, it is essential to consult with an experienced immigration attorney immediately for a full assessment of the situation.