Possess any of several controlled substances (CS) that are defined by California statute
Aggravated Felony (AF)
Not an AF unless: (a) a prior possession offense was pled or proved for recidivist enhancement, or (b) it is possession of flunitrazepam.
Crime Involving Moral Turpitude (CIMT)
Possession is not a CIMT (but sale or distribution is)
Other Removal Grounds
Deportable and inadmissible CS offense, unless a non-federal substance defense applies. (For that defense, 11377-79 is preferable to 11350-52.)
Advice and Comments
See this endnote1See generally ILRC, § N.8 Controlled Substance at www.ilrc.org/chart (2019) and see also:
ILRC, Practice Advisory: What Qualifies as a Conviction for Immigration Purposes (March 2018) at https://www.ilrc.org/what-qualifies-conviction-immigration-purposes (all topics)
ILRC, Practice Advisory: New California Pretrial Diversion (January 2018) at https://www.ilrc.org/new-california-pretrial-diversion-minor-drug-charges (includes § 1203.43)
ILRC, Practice Advisory: New Law that Will Help Vacate Legally Invalid Convictions: Penal Code § 1473.7 (October 2016) at https://www.ilrc.org/new-law-will-help-vacate-legally-invalid-convictions-advisory-about-ab-813
ILRC, Practice Advisory on Lujan-Armendariz and Nunez-Reyes (Drug Convictions on or before July 14, 2011) (July 2011) at https://www.ilrc.org/practice-advisory-lujan-nunez-july-14-2011
ILRC, Infographic About Post-Conviction Relief Vehicles (June 2017) at https://www.ilrc.org/infographic-about-california-post-conviction-relief-vehicles for links to Practice Advisories that cover the below topics in more detail.
1. Try to avoid a CS conviction—especially a first one! Depending on the individual, a single possession conviction can be fatal to current or hoped-for immigration status. The most minor conviction can destroy lives and families, including permanently depriving children of a parent. Argue equities and try to plead to e.g., 32, 459, 136.1(b), trespass, 459, DUI, B&P C 4140, etc. Individual analysis is required, but often a plea to a theft or even a violent offense is better than a CS offense. See § N.8 Controlled Substance.
2. Take pretrial diversion such as PC 1000 (1/1/18) if D can complete it. Because it has no guilty plea, this is not a conviction for immigration purposes. But if D is unlikely to complete the program, fight hard for a non-drug plea now rather than taking PC 1000, because in accepting PC 1000 the person must give up the right to jury trial if they should fail diversion and have to face the charges. Note that if D will be put in ICE custody, D will not be able to complete PC 1000—but at least will not have a guilty plea. See link to advisory in endnote above. Other forms of pretrial diversion, such as mental health diversion (PC 1001.36) and the new misdemeanor pretrial diversion (PC 1001.95), effective 1/1/2021, to the extent there is no guilty plea required.
3. Eliminate a prior CS conviction.
Former DEJ. People who pled guilty under former PC 1000/DEJ (1996-2917) and who obtain dismissal under former 1000.3 can submit a free, simple application to eliminate this “conviction” for immigration purposes, per PC 1203.43. See advisories in endnote above.
Conviction on or before 7/14/11. For a qualifying D, first conviction for possession of a CS or of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before 7/14/11 is eliminated for immigration purposes by rehabilitative statutes like 1203.4, withdrawal per Prop 36, former 1000.3, etc. D must not have violated probation or had a prior pretrial diversion (but these limitations might not apply if D was under age 21 at time of plea.) See H&S C 11360 and see Lujan advisory link at endnote above. The Ninth Cir found that a prior removal of a person who would have qualified for Lujan treatment was a gross miscarriage of justice.2See Vega-Anguiano v. Barr, 942 F.3d 945, 946 (9th Cir. 2019) (preventing government from reinstating the 1998 removal order).
Vacatur per PC 1473.7, 1016.5, habeas corpus, etc. California has several other types of post-conviction relief that can help immigrants; see especially PC 1473.7. See advisories at endnote above or go to www.ilrc.org/immigrant-post-conviction-relief.
4. Consider using a non-federal substance defense. To be a deportable or inadmissible CS offense or CS agg felony, a state conviction must involve a substance listed in federal drug schedules. California laws include a few non-federally listed substances. This gives rise to two non-federal substance defenses: the “unspecified substance” defense, where the record is sanitized to not reveal what substance was involved (see Part a, below), and the stronger but more difficult to obtain “specific non-federal substance” defense, where the record identifies one of the few substances listed in California, but not federal, drug schedules (see Part b, below). See also discussion of heroin which, unlike meth, might not be a federal controlled substance (Part c) and of cannabis as defined under Prop 64, where there is an argument that it is not a federal controlled substance (Part d).
Note that while the Ninth Circuit has upheld the non-federal substance defenses for 11550, 11350-52, and 11377-79, it is best to use 11377-79 for this defense.
a. Unspecified controlled substance defense prevents a finding of deportability, but will it continue to preserve eligibility to apply for relief?
Bottom line: The Ninth Circuit found that H&S C 11350-52, 11377-79 are divisible as to the substance involved: these statutes include some substances that are, and some that are not, on the federal lists, and the specific substance involved is an element of the California offense. Because these statutes are divisible, an immigration judge can look to certain documents that make up the individual’s “record of conviction” (ROC) to see which substance was involved in their conviction. (See discussion of the ROC below).
If the ROC is inconclusive on this point, then ICE cannot prove that an LPR is deportable.
But what happens if the ROC is inconclusive as to the substance, and the immigrant needs to apply for some relief? In 2019 the Ninth Circuit held in a great opinion that an inconclusive ROC means there is no CS conviction for any federal purpose, including eligibility for relief. Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc). However, the Supreme Court will hear arguments on this issue in fall 2020, in Pereida v. Barr, No. 19-438. Under Marinelarena, the Ninth Circuit rule is that if the defendant’s entire ROC refers only to “a controlled substance” (as opposed to, e.g., “ecstasy”) then a plea to 11377-79 or 11350-52 is not a controlled substance conviction for any immigration purpose, including eligibility for relief. Before Marinelarena, the defense effectively was available only to lawful permanent residents who were not already deportable, where ICE had the burden of proving that a conviction involved a federally defined controlled substance and therefore made them deportable. ICE could not meet its burden with an inconclusive ROC. Under Marinelarena, an inconclusive ROC also protects an immigrant—e.g., an undocumented person, or already-deportable LPR—who needs to apply for relief.
Marinelarena opened a desperately needed defense for undocumented people charged with drug crimes. In many cases, defense counsel are able to negotiate creation of an ROC that refers only to “a controlled substance.” Under Marinelarena, that is enough to avoid a dangerous drug conviction for all immigration purposes.
But due to a circuit split, the Supreme Court took up the issue in Pereida v. Barr. If the Court were to reverse the Marinelarena rule, the unspecified substance defense would go back to only helping permanent residents who are not already deportable; they still will be able to avoid being found deportable if the record of conviction of a divisible statute is inconclusive.
Therefore, the first line of defense always is to make every possible effort to avoid a drug conviction, by pleading to a non-drug offense or, where appropriate, getting pre-trial diversion such as PC 1000—especially for an undocumented person or other immigrant who must apply for relief. But where this is impossible, then creating a sanitized ROC remains a worthwhile option for immigrants who must apply for relief, because the Supreme Court might uphold the Marinelarena rule.
To read more about the legal issues involved in Marinelarena, see this endnote.3Non-federal substance defenses. All controlled substance removal grounds include language that defines a controlled substance (CS) according to federal drug schedules at 21 USC § 802. Deportable and inadmissible convictions or admissions, aggravated felony convictions, being inadmissible because gov’t has “reason to believe” one participated in trafficking, and (in regulation) drug abuse and addiction, all must involve a federal substance.
To come within any of these removal grounds, a conviction must have involved a substance that at that time was on the federal lists. See Mellouli v. Lynch, 135 S. Ct. 1980, 1982 (2015) (“At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists.”).
The Ninth Circuit held that California H&S C §§ 11350-52 and 11377-79 are overbroad as controlled substance offenses: they reach some substances that are, and some that are not, on the federal schedules. Regarding §§ 11350-52, see, e.g., U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc); U.S. v. De La Torre-Jimenez, 771 F.3d 1163 (9th Cir. 2014); U.S. v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012); Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. 2010). Regarding H&S C §§ 11377-79, see, e.g. Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014); Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007).
The Ninth Circuit has held that §§ 11350-52 and 11377-79 are divisible as to the substance. Under the modified categorical approach, an immigration judge or officer may look to the person’s record of conviction (ROC) to see if it proves that a federally listed substance was the subject of the conviction. Martinez-Lopez, supra. The disparity between federal and criminal CS definitions gives rise to two defenses: the unspecified substance and the specific non-federal substance defenses.
The unspecified substance defense and Marinelarena/Pereida. It is settled that ICE has the burden of proving deportability, which in this context means that to prove that an LPR is deportable for having a controlled substance conviction, ICE must produce a ROC that shows that a conviction under 11377-79 or 11350-52 related to a specific, federally-defined controlled substance. If the ROC was inconclusive as to the drug, because documents only referred to “a controlled substance,” ICE could not meet its burden.
The long-running contested issue, which is likely to be finally resolved in the Supreme Court’s decision in Pereida, is: what effect does an inconclusive ROC have when the immigrant is applying for relief? From at least 2007 to 2012, the Ninth Circuit held that an inconclusive ROC meant that such a conviction does not destroy eligibility for relief. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84 (9thh Cir. 2011). Then from 2012 to July 2019, the Ninth Circuit reversed course and held that the burden of proof switches when it comes to applying for relief. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) Under the Young rule, the immigrant had to prove they were eligible for relief, and if the relief would be blocked by a drug conviction, the immigrant had to produce an ROC that showed that the conviction involved a specific substance that was not on the federal list, such as chorionic gonadotropin. Therefore, an inconclusive ROC did not help an undocumented defendant, or an LPR who already was deportable, because they could not meet their burden of proving their conviction did not involve a federally defined substance. In 2019, the Ninth Circuit reversed course again: it overturned the Young rule in Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc), based on the intervening Supreme Court decision in Moncrieffe v. Holder, 569 U.S. 184 (2013). It held that if the ROC in a divisible statute is inconclusive, the conviction is not a “controlled substance” offense for any purposes, including as a bar to eligibility for relief. Now the issue is before the Supreme Court, which took up the Pereida case from the Sixth Circuit.
Ms. Marinelarena was convicted of Pen C 182(a)(1), conspiring to “sell and transport” an unspecified “controlled substance” under H&S C § 11352. The issue was whether this was a controlled substance offense that would bar her eligibility to apply for non-LPR cancellation. The court held that conspiracy, § 182(a)(1), is overbroad as a controlled substance offense, because it punishes conspiring to commit a range of crimes. “Having determined that § 182(a)(1) is not a categorical match, we normally next turn to the question of divisibility. However, for our purposes, it is sufficient to assume that § 182(a)(1) is divisible both as to the predicate crime underlying the conspiracy (here, § 11352) and as to the controlled substance element of § 11352, for, as explained below, it would make no difference in the outcome of this case if it were not.” Marinelarena at * 15. The court found that Ms. Marinelarena’s ROC was inconclusive because it included only the complaint. “[A] complaint alone is insufficient to prove a conviction related to a particular controlled substance, and the record contains no plea agreement, plea colloquy, or judgment to establish the elements on which Marinelarena’s conviction under 182(a)(1) rested.” Marinelarena at *16.
Thus, there was an inconclusive record of a conviction under a divisible statute. Under Young, Ms. Marinelarena would not have met her burden to prove eligibility for cancellation. But the court found that the analysis in Young is incompatible with Moncrieffe and subsequent Supreme Court rulings. The modified categorical approach is not a factual question that is subject to switching the burden of proof. “[W]hether the record of conviction necessarily established the elements of the disqualifying federal offense ‘is a legal question with a yes or no answer.’ Almanza-Arenas, 815 F.3d at 489 (Watford, J., concurring). And, as a pure question of law, it is unaffected by statutory burdens of proof.” Instead, “the categorical approach, and by extension the modified categorical approach, poses a fundamentally legal question. The categorical approach involves an ‘abstract’ inquiry, focused on whether a petitioner was ‘necessarily’ convicted of a disqualifying offense.” Marinelarena at *22-23. Once the court establishes that the offense does not necessarily involve a federally defined controlled substance (i.e., that the record is not conclusive), the inquiry is over.
The Supreme Court will address this issue in 2020 in Pereida v. Barr, No. 19-438 (2019). That decision presumably will uphold or reverse the Marinelarena rule. Until the Court decides Pereida, by far the best practice is to continue to use caution and try to get a specific “good” plea rather than rely on an inconclusive record, or better yet to plead to a non-drug offense. In immigration proceedings, advocates will continue to cite Marinelarena, which is governing law under the Supreme Court decides Pereida. See further discussion, including instructions for how to create an inconclusive ROC, at § 11377 and see n. 4.
Specific federal substance defense. For this defense, counsel must negotiate a plea to a specific California substance that does not appear on the federal schedules, such as chorionic gonadotropin or, probably, khat. This defense should protect all immigrants, applies nationally, and is not likely to be overturned. See discussion at 11377 and see N.8 Controlled Substances at www.ilrc.org/chart. (Note that even with this defense, the person still might face some other penalties; see Part e.)
How to create an “inconclusive” (sanitized) record for this defense. The goal is to remove any reference to a specific substance from the defendant’s reviewable record of conviction (ROC). In a conviction by plea, the ROC includes the charge pled to, as amended (not including dropped charges); the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. See Shepard v. U.S., 544 U.S. 13, 16, 20 (2005). Counsel may need to bargain for a new, sanitized count, or create a record showing that a count was amended.
The ROC does not include other documents, such as the police report, pre-sentence report, or preliminary hearing transcript—unless the defendant stipulates that the document provides a factual basis for the plea. To avoid stipulating to any factual basis, see People v. Palmer (2013) 58 Cal.4th 110, People v. French (2008) 43 Cal.4th 36, 50-51. If you must stipulate, stipulate to a document that you identify or create that contains details except for the damaging information, such as a written plea agreement or sanitized charge. See People v. Holmes (2004) 32 Cal.4th 432. For example, “On the evening of June 15, 2019, on the corner of Webster and 21st Street in Oakland, California, I possessed a controlled substance in violation of H&S C 11377.”
GIVE THE DEFENDANT AND THEIR FAMILY, FRIEND, OR IMMIGRATION COUNSEL A COPY OF THE INCONCLUSIVE ROC. Again, this is the charge pled to, with any amendments, plea agreement, factual basis for the plea if any, and judgment. Obtain, or advise defendant to obtain, a transcript of the plea colloquy. This is best practice because it is possible that courts will rule that an immigrant who applies for relief has the burden of producing the entire ROC to prove that it is inconclusive.
For more on creating a clean ROC and factual basis strategies, see N.8 Controlled Substances at www.ilrc.org/chart.
b. Specific non-federal substance defense. A second type of defense is to negotiate a plea to a specific substance that does not appear on federal drug schedules, such as chorionic gonadotropin and probably khat, for 11377-11379. This defense prevents a CS conviction or drug trafficking AF for any immigration purpose, whether deportability or eligibility for relief. The strong specific substance defense is not at issue in Pereida, is very unlikely to be overturned in another case, and is given effect nationally. The problem is that this can be a difficult plea to negotiate—although California defenders have accomplished it. (Note that even with this defense, the person still might face some other penalties; see Part e.)
c. Meth is a federally-defined controlled substance — but is heroin? Beginning in August 2018, the Ninth Circuit for some months held that California meth is not a federal controlled substance, because the chemical make-up of meth as defined under California schedules explicitly includes geometrical isomers, while the federal definition does not. That made California meth overbroad and indivisible compared to federal “generic” meth. There were multiple decisions in the Lorenzo and Rodriguez-Gamboa cases, until in August 2020 the Ninth Circuit held that meth as defined under California law is a federal controlled substance, because the meth geometrical isomer does not really exist.4For the opinions on methamphetamines, see Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. Jan. 17, 2019), withdrawing Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. Aug. 29, 2018) and filing a memorandum decision that can be found at https://cdn.ca9.uscourts.gov/datastore/memoranda/2019/01/17/15-70814.pdf. See also U.S. v. Rodriguez-Gamboa, 946 F.3d 548 (remanding to district court for evidentiary hearing regarding the existence of the isomer) and United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020) (accepting the district court’s finding that the geometrical isomer in meth does not exist). Many thanks to the Federal Defenders for spotting the isomer issue both for meth and heroin.
Now, advocates in removal proceedings can consider the argument that California heroin is a non-federal substance. Heroin, prohibited under 11350-52, appears to have the same textual overbreadth as meth did: the California statutory schedule specifically includes geometrical isomers of heroin, but the federal schedule does not. Further, it appears that a geometrical isomer of heroin—“isoheroin”—does exist. ILRC will post an expert declaration on this if and when it becomes available. This is not an established defense, and criminal defense counsel should not consider this a safe plea; they should seek one of the other defense strategies described here. But if there is no other alternative, a plea to isoheroin appears to be better than a plea to some other substance in 11350-11352, and immigration advocates can raise it as a defense in removal proceedings.
d. Cannabis as a non-federally-defined controlled substance. Defenders must assume that cannabis under California law, including post-Prop 64, is a federally-defined controlled substance. But advocates defending in removal proceedings can assert that Prop 64 changed the California definition of cannabis, so that it is overbroad and indivisible compared to the federal marijuana definition, and that the Prop 64 definition even applies to some convictions from before Prop 64’s effective date of Nov. 8, 2016. See discussion at H&S C 11357(a)(2) (current), above.
e. Other immigration consequences occur even if these defenses prevail. A noncitizen can be found inadmissible if the government has “reason to believe” the person aided in trafficking (as opposed to giving away) a federally-defined controlled substance. This is based on facts, not a conviction, and therefore it is not controlled by the categorical approach. Even if you create a non-federal substance defense discussed above, which avoids a deportable and inadmissible drug conviction, the person still might be inadmissible—but not deportable—if the government can gather sufficient probative evidence that the person trafficked in a federal CS. You can do little to prevent this, except (a) try to keep the ROC clean of information that would prove this ground, and (b) warn the client that they may be inadmissible and they must not travel outside the U.S. or submit any papers to DHS without getting an expert opinion. Of course, this is a much greater risk if the conviction was for 11378-79, 11351-52, and similar trafficking offenses than for possession.
Finally, sale, possession for sale, and distribution of a CS has been held to be a CIMT, regardless of whether the substance appears on federal drug schedules.5See, e.g., Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). Assume that any 11351-52 or 11378-79 will be a CIMT, even if you can avoid the (generally far worse) controlled substance penalties. Simple possession is not a CIMT.