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 ILRC, How to Defend Immigrants Charged with Drug Offenses (2023).
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, e.g., chorionic gonadotropin (11377-79). Immigration advocates can argue that heroin (11350-52) and marijuana as defined under California law are not a federal CS, but defenders should not rely on this as there is not yet a precedent decision. A federal district court held that California meth (11377-11379, 11364, 11370.1, 11550) is not a federal CS. See discussion of United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023). at 11377, below.
4. Plead to PC 372.5 (2023) or, with less than a year imposed, PC32. 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.
5. 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.
6. Potential defense: 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). This could be a defense to a current charge; a vacatur for a prior conviction; and/or a possible path to legal status. Even if this is unlikely to succeed as a full defense to a charge, good evidence and a potential defense may improve plea bargaining.
7. Eliminate a prior drug conviction with PCR. Additional PCR exists for minor drug offenses