Offense
H&S C 11379 Note that H&S C 11352(a) uses same analysis.
Includes sell, give away, transport for sale (1/1/14 statute), transport for personal use (pre-1/1/14 statute)—OR—or offering to do such conduct, with any of several controlled substances (CS) that are defined by California statute.
Review the several possible defenses to a CS charge at Advice to 11377, above, before pleading to this charge. If there is no alternative, consider the following.
Aggravated Felony (AF)
Divisible. Sections 11352 and 11379 are divisible in two ways: the verb and the substance.
Regarding the verb, if you cannot avoid this offense, always plead specifically to “offering” to give away (or if needed, to sell or transport). Specify “offering” rather than leaving the record vague, because the statute is divisible in this regard. Offering is not an aggravated felony for any immigration purpose, although only in immigration proceedings arising within the Ninth Circuit.1See U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) and see US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc) (holding that the California statutes are divisible between the offense and “offering to” commit the offense).
(Meaning, if the person ends up in immigration proceedings outside the Ninth Circuit, offering will be an AF.) Even within the Ninth Circuit, offering is a deportable and inadmissible drug offense; its only value is to avoid an AF. Plead to “willfully and unlawfully offering to give away a controlled substance.”
Regarding the substance, see discussion at 11377, Parts 3 and 6, of the non-federal substance defenses. The fact that 11377-79 and 11350-52 include a few substances that are not on federal schedules gives rise to some defenses against having a CS offense for any immigration purposes.
Yes AF: Sell, give away, post-1/1/14 transport
Not AF: Pre-1/1/14 transport is not an AF, because the minimum conduct is personal use. This should apply nationally. In the Ninth Circuit only, “offering to” commit one of the offenses is not an AF.
Crime Involving Moral Turpitude (CIMT)
Sale, transport for sale, offering to do these is a CIMT. The BIA held that giving away for free is a CIMT, although immigration counsel can investigate arguments against this. Transport based on pre-1/1/14 conduct should not be a CIMT because the minimum conduct is for personal use. Assume that the non-federal substance defenses (see 11377) do not prevent a CIMT.
Other Removal Grounds
Yes, deportable and inadmissible CS, unless a non-federal substance defense applies to your client. See discussion at 11377. See Advice regarding reason to believe trafficking.
Advice and Comments
Inadmissible if gov’t has “reason to believe” person participated in trafficking. This is a fact-based removal ground that does not require a conviction, so defenders can only do so much. A plea to unspecified CS may not prevent this finding, if ICE has the motivation and competence to locate substantial evidence that federal CS was involved. A plea to offering to give away rather than offering to sell is best.
The “reason to believe trafficking” inadmissibility ground is a bar to eligibility for almost all relief. An LPR who does not need to be admissible (e.g., who doesn’t leave U.S.) can survive it, but it is very bad for undocumented people, for refugees and asylees, or for LPRs who then travel outside the U.S. See § N.8 Controlled Substance and see § N.17 Immigration Relief Toolkit.
Refugees, asylees. Commercial trafficking (sale, post 1/1/14 transport, or offer to do these) is a particularly serious crime (PSC). Asylees and refugees are very likely to lose their status and be removed based on conviction, unless they have strong equities and the case has these factors: amount was very small, D was peripheral to scheme, no minors involved. Offer to give away is better than offer to sell for this purpose, although it is not safe. Best is to possession or a non-drug offense. The non-federal substance defenses don’t work for this purpose. See “Representing Refugees and Asylees” in § N.17 Immigration Relief Toolkit.
Defenses and alternative pleas: As with other drug offenses, counsel should try hard to plead to a non-drug offense, and review other possible defense options at 11377. If the defendant has equities such as a pending asylum case, family issues, etc., try to persuade the prosecution. If forced to plead to this offense, do plead specifically to “offering to distribute” to avoid an aggravated felony. Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141.
Victims of human trafficking or intimate partner violence. If the defendant may be a victim who is working under duress, see discussion at Advice to 11377.