H&S C 11377 H&S C 11350(a) uses the same analysis

Offense

Possess any of several controlled substances (CS) that are defined by California statute – Discussion of defenses for all CS charges

Aggravated Felony (AF)

Simple possession of a federally defined CS is not an AF unless:
(a) a prior possession offense was pled or proved to support a recidivist enhancement, such as 11395; or
(b) it is possession of flunitrazepam (a date-rape drug).

Crime Involving Moral Turpitude (CIMT)

Simple possession is not a CIMT.

Other Removal Grounds

Conviction is a deportable and inadmissible CS offense, if it involves a federally defined CS.

A qualifying admission to an immigration official that one possessed a CS offense, even without a conviction, makes one inadmissible and barred from some forms of immigration relief, but not deportable.

Marijuana: Marijuana is a federal CS and state convictions can have severe immigration penalties. Immigration law provides some exceptions for one or more convictions arising from a single incident involving possession of 30 grams or less. Note that there is an argument that a California marijuana conviction from on or after Nov. 9, 2016 is not a federally defined CS. See further discussion at 11357.

Advice and Comments

A. Simple possession and minor offenses

Even simple possession of a CS and minor offenses such as 11364, 11550 carry severe immigration penalties. In practice, some LPRs and some people who are applying for or were granted asylum-type relief can survive a possession conviction. Applicants for U or T visas can apply for a waiver, but in practice very few are granted, at least for U visas. See 11377.B for general defenses to CS charges.

Still, usually these offenses are not AFs (but see exceptions, including 11395).

Federally defined CS. A few California CS’s are not on federal drug schedules (e.g., khat) and arguably many California CS’s are defined differently than under federal law. This is a defense. A plea to possession of a California CS ‘analog’ might provide protection. See discussion at 11377 Part B.

Drug DEJ, including in 11395, is a conviction for immigration purposes. All California Deferred Entry of Judgment (DEJ) procedures that require a guilty plea result in a federal “conviction” even if D completes all requirements and the state finds no conviction. The DEJ at H&S C 11395, PC 1210.1, and the earlier version of PC 1000 (1997-2017) need PCR to vacate this “conviction.” Pre-trial diversion, such as PC 1001.36, 1001.95, and current PC 1000 that do not require a guilty plea are not convictions for immigration purposes. See Parts I and II of ILRC, Overview of California Post-Conviction Relief for Immigrants (2022), and below.

Special PCR for possession. California has good PCR vehicles, some especially for immigrants. See Part B, below. The good news is that DEJ dispositions, as well as minor CS offenses from before July 14, 2011, may be eligible for special PCR.

B. How to Respond to a Drug Charge

This section applies to all types of controlled substance (CS) offenses, not just possession.

For more information about the immigration penalties for CS convictions or admissions, see Overview: Controlled Substances. For more in-depth discussion of immigrants and controlled substance offenses, post-conviction relief, and the categorical approach, see ILRC practice advisories on drugs at N.8 of www.ilrc.org/crimes-summaries.

A minor CS convictions may be more damaging immigration status than some serious felonies. Each client needs an individual analysis. A drug trafficking conviction is fatal to almost all immigrants, unless they can prove that it’s more likely than not that they will be tortured if returned to the home country. Below are possible defense strategies to avoid CS convictions. In particular, see new developments in the defense of pleading to a CS “analog,” at Subsection 4, below.

Mandatory detention warning. All non-U.S. citizens who are convicted of possession or any other offense relating to a federally-defined CS are subject to mandatory ICE detention without bond during removal proceedings. The only exception is that people who were admitted into the U.S. are not subject based on one or more convictions arising from possession of 30 grams or less of marijuana. See Overview: Mandatory Detention.

1. Plead to a non-drug offense.

The obvious is the best. Try to bargain to drop the CS charge/s and instead plead to a non-CS offense that has no, or at least less severe, immigration consequences. Was a non-CS offense also charged, and might that or a similar offense be less damaging? It is often possible to drop a possession or even more serious CS offense when there are diverse charges. Or consider vandalism, trespass, B&P C 4141, and PC 370/372.5 (see Subsection 5, below) or, with a sentence of 364 days or less, PC 32 or 136.1(b). Burglary is a good immigration plea, unless the person was not admitted to the U.S. (e.g., entered without inspection) or is not an LPR; in that case it is a basis for mandatory ICE detention. See Overview: Mandatory Detention.

As with all these defenses, consult with a crim/imm expert early in the case. Each client needs an individual analysis. A particular substitute plea might be a great outcome for one noncitizen defendant but destructive for another.

2. Take pretrial diversion such as PC 1000, 1001.36, 1001.95, if D can complete it

Pretrial diversion (where the defendant pleads “not guilty”) is not a conviction for immigration purposes and can be a very good strategy for clients who can complete it. For a misdemeanor charge, consider judicial diversion, PC 1001.95, as it does not require waiver of rights or disqualify individuals based on their criminal history. Some defenders use arguments under the Racial Justice Act to persuade judges to grant it. Pre-plea drug courts (which do not require an admission or finding of guilt) are an option in some counties.

If these options are not available, counsel should carefully consider pretrial diversion under PC 1000 (2018) for certain enumerated CS charges. It has the disadvantage that if the defendant does not satisfactorily complete the program, they will face the original charges without the right to trial by jury. PC 1000.1(a)(3). Also, HS 11395 is not one of the enumerated offenses. Alternatively, for a felony or misdemeanor charge, including 11395¹, consider CARE Court²or mental health diversion (MHD), PC 1001.36, because addiction is a mental health issue.³ See also PC 1001.20 for clients with developmental disabilities. Starting in 2026, many noncitizens will not be eligible for Medi-Cal and therefore will not be eligible for treatment programs that require Medi-Cal. Prior to seeking MHD, counsel should verify whether the treatment plan requires Medi-Cal and/or the individual has Medi-Cal eligibility. Otherwise, the person could face termination of MHD based on non-compliance⁴, The California Department of Health Care Services posts materials on immigrant eligibility, including links to nonprofits that may be able to assist the individual.⁵

Unlike pretrial diversion, the DEJ offered by H&S C 11395, PC 1210.1, and former PC 1000 (1997-2017) is a conviction for immigration purposes even if the person successfully completes requirements, due to the guilty plea. See Overview: Definition of Conviction. This “successful” outcome under state law is a federal conviction that requires post-conviction relief. See PC 1473.7(e)(2) and discussion at ILRC, Overview of California Post-Conviction Relief for Immigrants (2022).

3. Plead to a California CS that is not on federal drug schedules: khat, hCG, ioflupane

For immigration purposes, a controlled substance (CS) refers to a substance found on federal drug schedules; see 21 USC 802. A California offense that involves a substance not found on federal drug schedules is not a CS offense for immigration purposes. Therefore, a conviction involving one of these substances is not of a deportable or inadmissible offense or AF under the CS grounds. California has a few such substances and some defenders have been able to negotiate pleas to them.

Khat, a plant, is criminalized under California law at, e.g., 11377-79. See H&S C 11055(d)(7). Khat is not a CS on federal drug schedules, and thus a California conviction is not a CS offense for immigration purposes.⁶ Plead specifically to khat; do not plead to the related substance, cathinone, which is a federal CS.

Human chorionic gonadotropin, or hCG, is not on federal drug schedules and for that reason has been a good immigration plea in California. But as of January 1, 2026, California has decriminalized it per AB 1152. Any conviction for hCG from before that date (or after, if there are any) will remain a non-federal CS and thus not a CS for immigration purposes.

Ioflupane (or ioflupane(123I)) is a derivative of cocaine via ecgonine. ⁷This is a developing defense. One could offer a plea to ioflupane in response to a charge under 11350-52 involving cocaine or other substance. In Brown v. U.S., 602 U.S. 101 (2024), the Supreme Court found that because ioflupane was federally legalized as of September 11, 2015, a state conviction from after that date is not a federal CS offense. A California conviction specifically for ioflupane is not a federal CS offense. If that is not possible, the next best plea is to “ecgonine and its derivatives,” but that is not as secure. See further discussion here⁸ and see also defenses in the next section.

4. Plead to a CS that California defines more broadly than federal law does: Analogs and isomers

California and federal statutes set out detailed, technical definitions of the chemical make-up of their controlled substances. If a CS appears on both California and federal drug schedules, but California law defines the substance more broadly than federal law does, a California conviction is not a CS offense for immigration purposes. Because at this writing there is no Ninth Circuit precedent precisely on this, defenders also should seek more secure defenses. But if one must plead to a CS, these defenses might save the day. Regarding analogs, it appears that there is no downside to adding the term “analog” to the plea. Removal defense advocates can make the following strong arguments that the person does not have a federal CS conviction.

Cannabis. Defenders should try to avoid any cannabis conviction, but immigration advocates can argue that a California conviction entered on or after November 9, 2016 does not meet the federal definition of cannabis and is not a ground for removal.⁹ See 11357.

General Defense: Plead to an “analog” of a California CS. If it is not possible to avoid a plea to a CS offense, a potentially strong defense is to plead to an analog of the CS, for example, “I possessed a methamphetamine analog.” At this writing, it is critical to plead to the analog itself, not just to the CS. There does not appear to be a downside to pleading to a CS analog rather than the CS, so at this point, as we wait for courts to resolve the issue, it may be best practice to always include “analog” for immigrant defendants.

While the cases discussed below involve meth and meth analogs, this defense should apply to a range of substances in Schedules I and II, including but not limited to heroin, cocaine, crack cocaine, LSD, fentanyl, etc. See H&S C 11401(a), referencing analogs to substances in 11054, 11055 (Schedules I and II) and 11357.7 (synthetic cannabinoid compound). For a particular substance, if you do not have access to an expert then at least conduct an online search to be sure that street analogs are available, and it is not for some technical reason a substance for which analogs are not possible or trafficked.

The rest of this section discusses the analog defense. A CS “analog” is a manufactured substance that is similar to the CS and is sold on the street. Both California and federal law criminalize CS analogs, but California law defines “analog” more broadly than federal law does. (For example, federal law provides that an analogue, as they spell it, must be similar to the CS both in chemical structure and in effect, while California law only requires an analog to be one or the other.¹⁰) Based on this discrepancy, a California CS analog arguably is not a federally defined CS. Two published federal district court decisions have upheld this argument. See U.S. v. Morales-Rodriguez and U.S. v. Verdugo.¹¹ Both decisions hold that a California conviction for meth is not a federal CS conviction, because the California definition of a Schedule II substance includes its analogs, and a California meth analog is not a categorical match with a federal CS or analog.

The Ninth Circuit has not yet ruled on the analog argument, but a decision may be coming. On January 8, 2026, a Ninth Circuit panel stated that if the case presents the issue, it will hold that under California law a meth analog is not a federal CS, although meth itself is. See U.S. v. Soto, U.S. v. Reid (9th Cir. Jan. 8, 2026).¹² There the defendants pled to 11378 involving “meth,” but they argued that under California law a CS automatically includes its analogs, so the plea also was to meth analogs and therefore was not a federal CS. (In categorical approach lingo, defendants are arguing that California statute is not “divisible” between a CS and its analogs; the analog is merely a means to commit the CS offense, rather than an element of a separate offense.) The Ninth Circuit panel certified this question to the California Supreme Court. It stated that no ruling has been made, but made clear that if the California Supreme Court finds that a plea to a CS does include the CS analogs, the panel will find that the convictions are not of CS offenses for federal purposes. Id. at * 3-4. While Soto/Reid and the federal district court cases involve federal criminal cases, the same definition of a federal CS (21 USC 802) applies in federal immigration law.

Defenders should specify “analog” in the record. In immigration proceedings DHS will argue that if the plea does not specifically state an analog, the plea was, e.g., to “heroin” rather than “a heroin analog,” and this defense is not available. This is the issue the Ninth Circuit is certifying to the California Supreme Court in Soto, Reid, discussed above. Protect your client and avoid this legal challenge by pleading to the CS “analog.” Push back if prosecutors oppose this.¹³

In cases where the term “analog” was not used removal defense advocates should argue that analogs are included in the definition of a California CS and preserve the issue for appeal and a decision in Soto, Reid. For legal arguments see, e.g., Morales-Rodriguez, 744 F. Supp. 3d at 1055-57. There the defendants pled to “methamphetamine” and the district courts held that the California statutory definition of a CS includes its analogs (the statute is not “divisible”), so that “analog” did not need to appear in the record to be considered in the case.

Identify specific isomers. Immigration advocates also can raise defenses based on the fact that the California definition of a CS includes isomers that the federal definition does not. At this time the analog case appears stronger, so defenders should identify “analog” in the plea, and immigration advocates can consider bringing both isomer and analog defenses, or just an analog defense.

In the prior Lorenzo cases, the Ninth Circuit held that California meth is not a federal CS because California law defines meth as having geometric isomers, while federal law does not. The holding on meth – but not the underlying reasoning — was withdrawn after it was determined that the named isomers in meth were a chemical impossibility.¹⁴ The argument can be applied to other substances where the analog does exist, which advocates can consider with chemist allies. The challenges are that (a) with the Lorenzo decision withdrawn, there is no Ninth Circuit precedent specifically on isomers, while at the same time (b) the Board of Immigration Appeals (BIA) issued a decision that purports to add complex evidentiary requirements to the isomer defense, which will require further litigation. Matter of Felix-Figueroa, 29 I&N Dec.157 (BIA 2025). Matter of Felix should not affect the analog defense, so advocates should argue that along with any isomer defense.

5. Plead to PC 370 / 372.5 or (with less than a year imposed) PC 32.

See further discussion at 372.5 in the Chart. In criminal court, PC 372.5 operates similarly to a “wet reckless”, giving D the option to accept most of the criminal penalties for a CS charge while avoiding some immigration or other civil (e.g., housing, employment) penalties. A defendant charged with drug offense/s can ask for charge/s to be dismissed and to plead instead to being a public nuisance (PC 370). Under PC 372.5(a)-(c), for this purpose 370 is punishable as an infraction, a misdemeanor/wobblette, or a 16-2-3 wobbler. Section 372.5 provides that a condition of the plea was that “drug” charges were dismissed. Similar to wet reckless, the DA cannot affirmatively charge 372.5, but if the defense requests it the DA will decide whether to agree. Note that 370/372.5 can be an alternative to a plea to an AF offense, such as possession for sale, sale, or 11395. (Section 372.5(c) can punish possession as a wobbler, like 11395 does.)

For immigration purposes, the conviction is for public nuisance, PC 370. That offense is not a CS offense, CIMT, AF, or other removable conviction. If the person is an LPR who needs to avoid becoming deportable, this will do that.

There still is a risk, however, for immigrants who need to apply for some immigration relief, a group that includes all undocumented people as well as LPRs who have become deportable. An immigrant becomes inadmissible under the CS grounds, and therefore barred from most but not all forms of relief, if they make a qualifying admission to immigration authorities that they committed a CS offense. ¹⁵With 370/372.5 (and often PC 32), DHS officers may try to compel the person to admit that they committed the originally charged CS offense. If the person refuses to answer those questions, their application for relief may be denied for failure to cooperate. Defenders should warn clients not to admit anything without counsel, and immigration counsel should see possible defenses if the person did admit.¹⁶ Even for applicants for relief, section 372.5 always is better than a conviction for a federally defined CS.

Compare to PC 32. Felony or misdemeanor PC 32 has long been used as an informal substitute immigration plea for a drug charge, to avoid a CS conviction. The advantages of 372.5 over 32 are that (a) 372.5 can take a sentence of a year or more without becoming an AF, while PC 32 cannot, and (b) some DAs have refused to accept a PC 32 plea for a CS charge on the grounds it is an inappropriate legal fiction, whereas 372.5 is a legislatively-sanctioned option for CS charges. The concern with 370/372.5 is that it is possible that DHS officers will be even more aggressive with a PC 372.5 than with a PC 32.

6. Might D be a victim of human trafficking or domestic violence?

There may be an innocence defense under California law, if the person has been coerced. See PC 236.23, 236.24. Coercion can refer to being forced to do something, e.g., produce or sell drugs,¹⁷or refer to coercion arising from the victimization (using drugs in response to despair). “Trafficking” refers to forced labor and does not require crossing borders. It can be very helpful for immigrants. San Francisco public defenders have hung juries on behalf of Honduran nationals who were charged with drug dealing but were trafficked and brutally coerced. Sacramento public defenders used evidence that their marijuana farm laborer clients fit the profile of trafficked workers, and used that to negotiate immigration-neutral pleas. California laws also provides special post-conviction relief for survivors under PC 236.14, 236.15, and survivors might be eligible for lawful immigration status. See Overview: Survivors and see ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022).

7. For LPRs Contesting Deportability: Keep the record vague as to which CS was involved

This long-time defense was significantly weakened in 2021. Defenses such as a plea to PC 32 or 370/372.5 are much safer for LPRs. But if other defenses are not available, this may help LPRs who are not yet deportable to avoid becoming deportable.

Immigration prosecutors (ICE) have the burden to prove that an LPR is deportable based on a conviction. If the entire “reviewable record of conviction” for a California drug offense only mentions “a controlled substance” instead of a specific CS, ICE cannot meet their burden. The “reviewable record of conviction” is the charge pled to; the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. However, in Pereida v. Wilkinson, 592 U.S. 224 (2021), the majority stated in dicta that evidence from outside the record of conviction also can be used. That makes the LPR’s defense less secure: even if the record of conviction is sanitized, if ICE has the motivation and ability to gather “clear and convincing” evidence from outside the record to prove the substance, they may break the defense. But if ICE does not gather other evidence and the record is properly sanitized, the defense will work. For how to create a sanitized record of conviction, see endnote.¹⁸

Pereida also resolved a circuit split and held that a vague record of conviction does not help an applicant for immigration relief. In drug cases, that means that the applicant has the burden to prove that the substance was not a federal CS – thus, a vague record is of no use. For further discussion see ILRC, Pereida v. Wilkinson and California offenses (April 2021).

8. Eliminate a prior CS conviction with Post-Conviction Relief

Vacate the conviction using PC 1016.5, 1018, 1473.7, or other vehicles. California has several types of post-conviction relief (PCR), including some especially for immigrants. Well-prepared advocates frequently have had success in getting PCR that will be given effect in immigration proceedings. It is critical to go in with a good case analysis and knowledge of what is required both in criminal and immigration proceedings. For the analysis, see ILRC, Overview of California Post-Conviction Relief for Immigrants (July 2022) and ILRC, Worksheet on California Post-Conviction Relief for Immigrants (May 2024), both found at www.ilrc.org/crimes-summaries.

See also the ILRC book available for purchase, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (January 2023) and materials at www.ilrc.org/immigrant-post-conviction-relief.

PCR for DEJ. Even a successfully completed California Deferred Entry of Judgment (DEJ) proceeding is a conviction for immigration purpose. This includes DEJ under H&S C 11395, PC 1210.1 and a past version of PC 1000 (1997-2017). Defenders may be able to obtain a vacatur under PC 1473.7(e)(2) fairly easily and without conflict of interest, based on the text in DEJ statutes promising that success will mean that there will be no “conviction.” See discussion in the above materials and Overview. If the defendant can file a declaration stating (honestly) that they understood the statute to mean there would be no conviction including for immigration purposes, and that they relied on that in deciding to plead, that may be helpful in immigration proceedings.

Conviction on or before 7/14/11. For a qualifying D, a 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 may be eliminated for immigration purposes by rehabilitative statutes like 1203.4, withdrawal per Prop 36, former 1000.3, etc. See discussion of Lujan-Armendariz at Overview of California Post-Conviction Relief for Immigrants, cited above. The Ninth Circuit found that a prior removal of a person who would have qualified for Lujan Armendariz treatment was a gross miscarriage of justice. Vega-Anguiano v. Barr, 942 F.3d 945, 946 (9th Cir. 2019).

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.