Driving under the influence of a “drug,” or of a drug and alcohol
Aggravated Felony (AF)
Crime Involving Moral Turpitude (CIMT)
Other Removal Grounds
Should never be a CS offense under the categorical approach,1A conviction comes within the controlled substance ground of inadmissibility or deportability only if, under the categorical approach, it involves a federally identified CS. See Mellouli v. Lynch, 135 S. Ct. 1980, and discussion at H&S C § 11377. Sections 23152(e) does not meet that test. It is overbroad because the minimum conduct may involve a drug that is not a CS (e.g., over-the-counter sleeping or allergy pills). It is indivisible because the single term “drugs” does not set out statutory alternatives, at least one of which is limited to controlled substances. See, e.g., Descamps v. United States, 570 U.S. 254 (2013) (the single term “entry” is not divisible between permitted and non-permitted entries). Because the statute is overbroad and indivisible, no conviction can be a controlled substance offense for any immigration purpose. Authorities may not consult the record of conviction to determine what “drug” was involved. See further discussion of the categorical approach at n. 4, above. However, because authorities do not always correctly apply the categorical approach, the best practice is to avoid naming a federally defined CS in the ROC. Also, warn the client not to talk with any immigration authorities about the event or any controlled substance that was involved, without first getting immigration help. The government might try to assert that even though the person was not convicted of a CS offense, the person is inadmissible for “admitting” a CS offense. but best practice is to plead to alcohol to or to a specific non-CS, e.g., allergy or sleeping medication. See Advice.
Advice and Comments
Generally, see 23152(a).
CS. This is not a CS offense because “drug” is not a divisible term, and it includes substances that are not CS. However, it could prompt questioning by imm officials that would lead to the person formally admitting to using a CS, which can be a ground of inadmissibility, unless the person pleads to a specific non-CS.