Sell, give away, transport for sale (1/1/14 statute), transport for personal use (pre-1/1/14 statute)—OR—offering to do such conduct, with any of several controlled substances (CS) that are defined by California statute
Aggravated Felony (AF)
AF: Divisible. Note that 11352 and 11379 are divisible in two ways: the verb and the substance. Regarding the verb, always plead specifically to “offering” to commit the offense. This will avoid an aggravated felony for all immigration purposes, although only in imm proceedings arising within the Ninth Circuit. Regarding the substance, try to negotiate a “non-federal substance” defense, discussed above. Note that in 2020, the Supreme Court will consider whether an inconclusive record of conviction will protect persons applying for relief. See discussion at 11377, parts a and b, above.
This section discusses the immigration effect of the various verbs in 11352/11379. It assumes that a federal substance defense does not apply.
“Offering” as an AF depends on the jurisdiction: Offering to commit an 11352/11379 offense is not an AF, but only in immigration proceedings arising in the Ninth Circuit. Plead specifically to “offering” to give away (or if needed, sell or transport); do not create a vague record on the verb, as this is a divisible statute per US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc). If the person is placed in removal proceedings outside the Ninth Circuit, offering will be an AF.
Yes AF: Sell, give away, post-1/1/14 transport
Not AF: Pre-1/1/14 transport is not an AF, because minimum conduct is personal use. This should apply nationally.
Again: An 11351-52 or 11378-79 conviction is not an AF or controlled substance offense to the extent that one of the non-federal substance defenses applies to your client. See discussion at 11377.
Crime Involving Moral Turpitude (CIMT)
CIMT: Sale, transport for sale, offering to do these is a CIMT. The BIA held that giving away for free is a CIMT, although imm 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
Other removal grounds. Yes, deportable and inadmissible CS, unless a non-federal substance defense applies to your client. See discussion at 11377.
Advice and Comments
Inadmissible if gov’t has “reason to believe” person participated in trafficking. This is a fact-based removal ground that is not restricted to the ROC and does not require a conviction, so defenders can only do so much. Plea to unspecified CS may not prevent this if there is substantial evidence that federal CS was involved. A plea to offering to give away rather than sale is best.
This 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.
Alternative pleas: See also H&S C 11391, 25189.5, PC 32, 136.1(b)(1), 460, etc. See B&P C 4140, 4141 (possession, sale of syringe)
Victims of human trafficking. If the defendant may be a victim who is working under duress, see discussion at Advice to 11358.