H&S C 11364

H&S C 11364

Offense

Possess drug paraphernalia

Aggravated Felony (AF)

Not AF.
(Sale of drug paraphernalia may be AF, however.)

Crime Involving Moral Turpitude (CIMT)

Not CIMT

Other Removal Grounds

Deportable and inadmissible CS conviction. Consider B&P C 4140 instead.
A non-federal controlled substance defense may help, but a better plea for that defense is to H&S C 11377. See discussion at 11377.

Advice and Comments

1. Try hard to plead to a non-drug offense. Even the most minor drug offense can have catastrophic immigration effect. See Advice to 11377 and see § N.8 Controlled Substance. See also B&P C 4140, possession of syringe.

2. Take PC 1000 pretrial diversion if D can complete it.

3. Marijuana. While 11364 technically might not apply to cannabis, it sometimes has been used. For past convictions, a first conviction for possessing paraphernalia relating to marijuana would qualify for the advantages of first possession of 30 grams 1Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). (although 11364 technically does not extend to mj.) See H&S C 11357(a) (current) for information on that, as well as on an argument that California cannabis is not a controlled substance for imm purposes.

4. Consider post-conviction relief for prior cases. This includes PC 1203.43 treatment for prior DEJ pleas; Lujan-Armendariz treatment for a minor conviction from before 7/15/11; PC 1473.7, and several other California vehicles. See 11377 and materials at www.ilrc.org/immigrant-post-conviction-relief

2020-05-19T16:36:55+00:00Updated January 29th, 2020|