Offense
(a) Forge prescription for any drug
(b) Possess any drug obtained by forged prescription
Aggravated Felony (AF)
AF CS: May be a good alternative to avoid an AF as CS. Avoid 1 year or more imposed on any single count. See Advice.
Crime Involving Moral Turpitude (CIMT)
May be divisible as CIMT. Assume forgery (a) is CIMT, but possessing the drug (b) might not be because generally unlawful possession of a CS is not a CIMT.
Other Removal Grounds
Should not be a conviction of a CS offense. The term “drug” is overbroad because it includes noncontrolled substances (CS), and is not a divisible term. See discussion and other options at 11377.
Advice and Comments
Drug AF: Good alternative to H&S C 11173, 11368, as a non-CS offense and a non-AF. A state offense is a drug trafficking AF if it is analogous to certain federal drug felonies. This is not an analogue to 21 USC 843(a)(3) because it does not have a CS as an element (see column to the left). But where possible, best practice is to sanitize ROC of mention of a specific CS.
Forgery AF: “Forgery” is an AF if 1 year or more is imposed. Assume (a) meets the AF definition of forgery. Imm counsel can investigate arguments that (b) does not.1An offense “relating to” forgery is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(R). Immigration counsel can investigate defenses to (b), possession of a drug obtained by a forged prescription, based on the fact that the Ninth Circuit has held that the “relating to” language cannot be over-extended and that forgery requires possession of a forged instrument. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 (9th Cir 2008). Section (b) requires only possession of the drug obtained with a forged instrument, and not possession of the instrument itself. On its face, it does not require that the defendant knew that the drug had been obtained by forgery. But crim defense counsel should act conservatively and obtain 364 days or less in all cases