Offense
Possess controlled substance
Aggravated Felony (AF)
Not an AF, except for the below exceptions.
Possession of a CS is an AF if (a) it is possession of flunitrazepam or (b) it is a second offense, where the first possession was pled or proved for a recidivist sentence enhancement.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT.
Other Removal Grounds
Deportable and inadmissible CS offense. But see Advice regarding PC 372.5 and other defenses, which are set out at 11377.
There is an argument but no precedent that a California conviction involving heroin is not a conviction of a CS offense. See Advice
Advice and Comments
H&S C 11350(a), (b).
Information for all charges, 11350-11352.
See also materials at N.8 Controlled Substances at www.ilrc.org/crimes-summaries.
See Advice to 11377, below, for further discussion of the following defenses:
1. Plead to any immigration-neutral (or at least less bad) non-drug offense.
2. Take pre-trial diversion, PC 1000, if D is likely to complete it
3. Plead to a specific non-federal substance. In response to a cocaine charge, try to plead to ioflupane. Or plead to khat (11377-79). Both should be secure defenses.
4. Plead to a controlled substance (CS) that appears on both federal and state drug schedules, but that is defined more broadly under California law. This is a strong immigration argument, but because there is not yet Ninth Circuit precedent defenders should try not to rely on it. . The best option is to plead to a CS analog, e.g., “I possessed a heroin analog under 11350.” See further discussion at 11377, below.
5. Plead to PC 372.5 (2023) or, with less than a year imposed, PC 32. These should not be convictions of a CS offense, an AF, or CIMT. But these are better for LPRs contesting deportability, as ICE may pressure the person to admit the underlying conduct, which potentially could trigger inadmissibility and ineligibility for relief (but not deportability). See Advice to PC 372.5.
6. Less secure defense for LPRs: An older defense was to create a record of conviction that does not name any CS, referring throughout to “a controlled substance” rather than, e.g., “morphine.” Since the 2021 decision in Pereida, however, this only helps LPRs to contest deportability, and even that is not secure. Any of the other options are better, but if they are not available this one is worthwhile for LPRs.
7. Potential defense/basis for vacatur: Might D be a victim of human trafficking or domestic violence who is committing a drug offense under coercion? Coercion can mean under direct orders (e.g., to sell drugs) or coercion arising from the victimization, without orders (e.g., taking drugs in response to pain or despair). Even if this is unlikely to succeed as a full defense to a charge, good evidence and a potential defense may improve plea bargaining. Look at Overview: “Criminal Defenses for Victims of Intimate Partner Violence, Sexual Abuse, and Human Trafficking”
8. Eliminate a prior drug conviction with PCR. Additional PCR exists for minor offenses. See ILRC, Overview of California Post-Conviction Relief (2022).
SB54: Misdemeanor drug offense does not permit law enforcement to notify/transfer to ICE, but 1170(h) drug felony does for 15 years following conviction. See SB 54 advisory at www.ilrc.org/crimes-summaries
Mandatory Detention: People not admitted to U.S. are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.