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
AF: Possession is not an AF unless: (a) a prior possession offense was pled or proved for recidivist enhancement, or (b) it is possession of flunitrazepam.
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 links to Practice Advisories
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 (April 2019) 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 §43, but note that since ICE often contests the effect of § 1203.43, the most secure option would be for the person also to obtain relief under § 1473.7)
– ILRC, Practice Advisory: § 1473.7 Motions to Vacate a Conviction or Sentence in California (Oct. 2020) at https://www.ilrc.org/14737-motions-vacate-conviction-or-sentence-california and Practice Advisory: Using and Defending California Penal Code 1473.7 in Immigration Proceedings (April 2020) at https://www.ilrc.org/using-and-defending-california-penal-code-%C2%A7-14737-vacaturs-immigration-proceedings-sample-memorandum
– 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. For example, 11377-79 includes chorionic gonadotropin, which is not a federal substance. and khat, which probably is not.3Advocates can investigate this. The khat plant itself is not listed in federal drug schedules, but certain chemicals that are present in some but not all khat plants, and that come into being upon ingestion, are listed in federal schedules. Whether possession of khat itself is possession of a federal substance has been handled differently in various criminal and immigration cases. See, e.g., Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir. 2005). The Ninth Circuit has not ruled on this issue.
This gives rise to two “non-federal substance” defenses. In the “unspecified substance” defense, the record is sanitized to not reveal what substance was involved. See Part a, below. This defense has severe limits: it only helps a permanent resident to avoid a finding a deportability, and even this defense may be made less secure, due to Pereida. In the far stronger but more difficult to obtain “specific non-federal substance” defense, the record identifies one of the few substances listed in California but not federal drug schedules (e.g., “I possessed chorionic gonadotropin” or “possessed khat”.) See Part b, below. 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.
See also discussion of heroin which, unlike meth, might not be a federal controlled substance (see Part c) and of cannabis as defined under Prop 64, where there is a real argument that convictions on or after November 9, 2016 (after Prop 64) are not of a federal controlled substance (Part d).
a. Unspecified controlled substance defense prevents a finding of deportability (although see below), but it does not help immigrants who need to apply for relief.
Because H&S C 11350-52, 11377-79 contains substances that are not in the federal schedules, if a defendant’s record of conviction does not reveal which substance was involved in their offense, there is no proof that it was a federally defined substance, and therefore no proof that it is a controlled substance conviction for immigration purposes. For that reason, one criminal defense strategy has been to create an inconclusive “record of conviction” that does not name a specific substance. The record of a conviction by plea, i.e., the documents that must be sanitized of mention of the specific substance, has long been limited to “Shepard documents”: 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. For example, a plea to a negotiated count that charged “offering to distribute a controlled substance in violation of 11379,” where the plea agreement or a statement by counsel was the designated factual basis, would suffice. See next section for further discussion on how to create this record.
If the record of conviction is inconclusive, then the result in immigration proceedings turns on factors such as who has the burden of proof and whether this is deemed a legal or factual inquiry. The Supreme Court issued a bad decision on this in Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), which overturned the better view in the Ninth Circuit Marinelarena decision. The bottom line is:
- If your client is “removable” – which includes any undocumented person, or permanent resident who already is deportable — they need to apply for some immigration “relief” in order to stay lawfully in the U.S. The inconclusive record defense will not help them do that. For example, under Pereida an applicant for relief with a conviction under 11377-79 would have to have pled specifically to chorionic gonadotropin or khat, and have evidence to prove that. (If that is possible, see Part b, below.). All that will help an applicant for relief who must avoid a controlled substance offense is a plea to a non-drug offense or to pre-trial diversion.
- While an inconclusive record won’t preserve eligibility for relief, it might help in another way. If the person is undocumented and was originally admitted to the U.S., it might enable them to avoid mandatory ICE detention without a bond hearing under 8 USC § 1226(c), because ICE could not prove they had a deportable offense. See Mandatory Detention Advisory (Nov. 2020) at ilrc.org/crimes.
- If instead your client is a permanent resident who is not already deportable, the unspecified record may prevent ICE from meeting its burden of proving that the conviction makes them deportable, because ICE will not be able to prove that the conviction involved a federally-defined substance. This has long been a secure defense against deportability, and if there is no other option, creating an inconclusive record is extremely worthwhile. The catch is that, based on dicta in Pereida, it is possible that courts will rule that ICE can submit other documents from outside the record of conviction, or even testimony, to prove the substance. We do not know if this will happen, but it means, at the least, that we must warn LPRs that this is no longer an entirely secure defense – and try hard for another disposition.
For further discussion of Pereida, drug offenses,and the modified categorical approach, see ILRC, Practice Advisory: Pereida v. Wilkinson and California Offenses (April 2021) at https://www.ilrc.org/pereida-v-wilkinson-and-california-offenses.
How to create an “inconclusive” record of conviction for this defense. NOTE: As discussed above, the Supreme Court decision in Pereida included dicta that might weaken this defense, because it is possible courts with withdraw from precedent and permit ICE to use evidence from outside the record of conviction to prove the specific substance. See the Pereida Practice Advisory above. Therefore, while this may remain an effective defense and it is entirely worthwhile if there are no other options, we must advise clients that it is not completely secure. We should look for other options, namely pretrial diversion or a plea to a non-drug offense, including with drug counseling as a condition of probation. Here are instructions for how to create an inconclusive record, if that is the best available strategy.
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 (see above) 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 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 U.S. 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 should conservatively 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 a conviction relating to cannabis from on or after November 9, 2016 (the effective date of Prop 64) is overbroad and indivisible compared to the federal marijuana definition, and thus is not a controlled substance offense for immigration purposes. 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.
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. Arguably sharing or selling marijuana is not a CIMT, since in the U.S. this is a multi-billion dollar legitimate industry spread over 36 states.