Unidentified Drug Convictions: A New Look At Matter of Paulus

Transcription

1 Law Offices of Norton Tooby Crimes & Immigration enewsletter July 14, 2004 Unidentified Drug Convictions: A New Look At Matter of Paulus Contents: 1. Introduction: Defense Against Deportation for Convictions Involving Unidentified Drugs. 2. Online Resources Related to Drug Offenses 3. Article Part 1: Paulus and Subsequent Case-Law 4. Print Resources Related to Drug Offenses 5. Article Part 2: How to Make Your Own Drug List Comparison [1] INTRODUCTION: Defense Against Deportation for Convictions Involving Unidentified Drugs. By: Joseph Justin Rollin and Norton Tooby To constitute a deportable controlled substance conviction or a drug-trafficking aggravated felony, an offense must involve a controlled substance that is on the federal list. If the controlled substance is on a state list, but is not on the federal list, and the state list includes additional drugs that are not on the federal list, the conviction does not trigger adverse immigration consequences wherever - as in deportation proceedings - the government bears the burden of proof. This rule, first expressed over 39 years ago, in Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965), is (for the most part) still good law today. Part I of this article will examine the Paulus rule in light of some recent case law. Part II will show how you can find out whether your state's drug schedules include offenses that are not included in the federal schedules, so that a conviction that does not identify the specific drug cannot trigger deportation as a controlled substances conviction or an aggravated felony.

2 [2] ONLINE RESOURCES: Matter of Paulus, 16 I. & N. Dec. 274 (BIA 1965), and other BIA decisions may be viewed without charge at: D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes is online at C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure (2002) is online at [3] ARTICLE PART I: Paulus and Subsequent Case-Law The Paulus Rule: In 1965, INA 241(a)(11) made subject to deportation any noncitizen who "has been convicted of a violation of... any law or regulation relating to the illicit possession or traffic in narcotic drugs or marijuana...." In Matter of Paulus, 16 I. & N. Dec. 274 (BIA 1965), the BIA found that a noncitizen convicted under California Penal Code 1105 of sale of an unidentified "narcotic" did not fall within this ground of deportation because the INS could not prove that the "narcotic" that was the subject of the state criminal conviction was a "narcotic drug" listed under the federal drug schedules. At the time Matter of Paulus was decided, there was no definition of "narcotic drug" for immigration purposes, and the INS argued that a "generic" definition should be adopted that would have included whatever happened to be considered a 'narcotic' in California or any other state. The BIA rejected this argument on the basis of a California Federal District Court decision that limited the term "narcotic drug" in former INA 241(a)(11) to substances defined as a "narcotic drug" by federal law. Mendoza-Rivera v. Del Guercio, 161 F.Supp.473 (Cal. 1958), aff'd sub nom. Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir. 1959). Since then, Congress has specifically limited the definition of "controlled substances" to those substances defined as such by federal law. INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II) (controlled substance offense ground of inadmissibility); INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA 237(a)(2)(B)(ii), 8 U.S.C. 1227(a)(2)(B)(ii)

3 (controlled substance conviction deportation ground); INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (illicit drug trafficking aggravated felony definition). Congress has therefore adopted Paulus as a matter of law. In proceedings where the respondent is charged with deportability under INA 237, the Government must demonstrate by clear and convincing evidence that the substance that was the subject of the state criminal conviction is a substance listed in the federal drug schedules. See INA 240(c)(3)(A). However, where the noncitizen is charged with inadmissibility under INA 212, the noncitizen must show clearly and beyond doubt that the substance involved is not on the federal schedules. See INA 240(c)(2)(A). Because some state statutes include drugs which are not listed on the federal list, the party with the burden of proof loses where no controlled substance is listed in the state criminal record of conviction. Defense counsel can attempt to sanitize the record of conviction of the identity of the specific controlled substance, so no particular controlled substance is identified in the charge, plea or judgment. If successful, the Government cannot then establish that the conviction involves a federally-listed controlled substance, and therefore cannot establish that any drug-related conviction ground of deportability exists. Remember that this strategy will not work where the non-citizen bears the burden proof. In some rare cases, defense counsel may be able to plead the defendant to commission of a state drug offense explicitly involving a substance not listed in the federal schedules. Unless, and until, that substance is added to the federal schedules, the noncitizen will successfully avoid adverse immigration consequences regardless of which party bears the burden of proof. Paulus Threatened in the Ninth Circuit: Probably the most direct threat to the survival of the Paulus rule is the Ninth Circuit decision of Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000). Luu-Le held that a violation of Arizona Criminal Code , possession of drug paraphernalia, was a conviction "related to" a controlled substance. The court found that since the Arizona statute listed "fourteen factors that a court shall consider... in determining whether an object is drug paraphernalia," including intent to use, a conviction under the statute was clearly "related to" a controlled substance offense. Id. at 915. In making this decision, the court also briefly addressed the issue that the possession of drug paraphernalia conviction was not related to any particular drug. The Arizona statute defines "drug" for purposes of the paraphernalia statute as, "any narcotic drug, dangerous drug, marijuana or peyote." Arizona Criminal Code (F)(1). Although noting that the

4 definition of "controlled substance" was limited under the INA to the federal drug schedules, and that "the definition of 'drug' as used in section does not map perfectly the definition of 'controlled substance' as used in [the] INA," the court found that the Arizona statute was "plainly intended to criminalize behavior involving the production or use of drugs - at least some of which are also covered by the federal schedules of controlled substances...." Luu-Le v. INS, 244 F.3d at 915. Although Luu-Le has been subsequently cited for the idea that possession of paraphernalia is "related to" a controlled substance, no case has yet cited Luu-Le as a challenge to the Paulus rule. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1135 (9th Cir. 2000) (applying Lujan-Armendarez v. INS, 222 F.3d 728 (9th Cir. 2000) to a conviction for possession of paraphernalia). However, there is clearly a danger of this happening in the future. The Luu-Le court basically took a "close enough" position by failing to hold that the a conviction under the Arizona paraphernalia statute could not qualify as an offense "related to" a controlled substance unless the record of conviction made clear that the paraphernalia was intended to be used with a federally controlled substance. This holding appears to violate the Paulus rule. This holding also violates the well established rule that where the government bears the burden of proving deportability, but the exact elements of the offense to which the noncitizen entered a plea are not clear from the record of conviction, the charge of deportability cannot be sustained, even if the noncitizen had, in fact, committed an offense that would sustain a ground of deportability. See United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004) ("the issue is not whether [the] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the state statute] constitutes an aggravated felony"), quoting United States v. Taylor, 495 U.S. 575, 602 (1990); Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (opinion of Sotomayor, J.); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of Espinosa, 10 I. & N. Dec. 98, 100 (BIA 1962); Matter of N, 8 I. & N. Dec. 466 (BIA 1959). Luu-Le did not deal with a situation in which a noncitizen was convicted under a statute that required the involvement of some definite substance (i.e., possession or sale), where the drug was unidentified. Since possession of paraphernalia hinges on the paraphernalia itself, rather than a controlled substance, there may be room to distinguish Luu-Le from a straight Paulus situation. Retroactivity of the Federal Drug Schedule for Aggravated Felons:

5 In Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003), the court applied the Paulus rule (though not citing the case itself), and actually compared the federal drug schedules and the state schedules to determine that the noncitizen must have been convicted of an offense related to a federal controlled substance. Mr. Gousse was convicted of "sale of hallucinogen/narcotic" in violation of Connecticut Gen. Stat. 21a-277(a). Gousse v. Ashcroft, 339 F.3d at 93. Applying the categorical approach, the court first narrowed the list of possible drugs for sale of which defendant was convicted from all controlled substances proscribed by Connecticut law to only hallucinogenic or narcotic drugs. Id. at By state law, the list of hallucinogenic drugs was expressly co-extensive with the federal list, so the court turned its focus to determining whether all 'narcotic' drugs listed in the Connecticut drug schedules were in fact included within the broader category of all listed federal controlled substances. Id. at 97. Counsel argued that two particular substances fell within the Connecticut definition of "narcotic," but were not included within the federal definition. The court found that one of those two substances was not actually on either list, and therefore Mr. Gousse could not have been convicted of selling that particular substance. Id. at The other substance, the court noted, was added onto the federal schedules one week before Mr. Gousse entered his plea of guilty. The court rejected counsel's argument that the substance had to be proscribed under federal law at the time the offense was committed. The court went beyond merely holding that the substance had to be proscribed under federal law by the time the plea was entered, and held that because the aggravated felony definition is retroactive, "[a]ll that is required for removal is that an earlier conviction be encompassed by the definition of 'aggravated felony' at the time removal proceedings are initiated." Id. at 99. Therefore, as long as the substance was included on the federal schedule by the time immigration proceedings were initiated, it did not matter that the substance was not proscribed by federal law at the time of the offense or the conviction. Ibid. Although Gousse reads like an unfortunate decision, especially if your client was convicted in Connecticut, the case did correctly apply the Paulus rule (unlike Luu-Le), and the categorical analysis based upon a comparison of federal and state drug schedules. Mr. Gousse had a more difficult task than others might, since his record of conviction limited the applicable state controlled substances to hallucinogens and narcotics. There may still be other controlled substances proscribed by Connecticut law that are not on the federal schedules. It is important to remember who has the burden of proof in these cases. Additionally, although the

6 federal drug schedules were retroactively applied to Mr. Gousse, charged as an aggravated felon, such retroactive application would arguably not apply where a noncitizen is charged under one of the other drug-related grounds of removal, since the other deportation grounds are not expressly made retroactive to convictions occurring before the deportation ground came into existence or was expanded to cover the present case. Surprisingly, both Luu-Le and Gousse fail to cite or mention Matter of Paulus, even though the circuit courts are normally required to give Paulus deference under Chevron USA v. Natural Resources Defense Counsel, 467 U.S. 837 (1984) to BIA decisions. But see Michel v. INS, 206 F.3d 253, (2d Cir. 2000) (Chevron deference not accorded to construction of state penal code). Both decisions were also unclear regarding the burden of proof. Luu-Le and Gousse were both cases where "the jurisdictional question and the merits collapse[d] into one." Luu-Le v. INS, 224 F.3d at 914 (quoting Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000)). Although the Government bears the burden of proving that a noncitizen is deportable by clear and convincing evidence, under INA 240(c)(3)(A), neither court made mention of this burden. Given the jurisdictional nature of these cases, the courts may have instead placed the burden on the noncitizen appellants to show that the court had jurisdiction under INA 242(a)(2)(C) (no jurisdiction to review orders of removal on criminal grounds). Court decisions are not authority for propositions not considered therein. See R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ("It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995). Since Luu-Le did not deal directly with a drug conviction (but rather a conviction "related to" drugs), did not directly consider the Paulus decision or whether the decision should be given Chevron deference, and did not make clear who had the burden of proof, the case is arguably not the final word on the Paulus rule in the Ninth Circuit. The Paulus rule is nearly 40 years old, and should not be deemed overruled by a cursory paragraph in a four-page decision. Teleseminar CD: Firearms Drugs and Domestic Violence Deportation Grounds In this three-hour audio CD set you will learn the elements of:

7 (1) The Firearms Conviction deportation ground; (2) The various Controlled-Substances grounds of deportability and inadmissibility (excluding the drug trafficking aggravated felony deportation ground, which was covered in the previous Aggravated Felony teleseminar, now available on CD); and (3) The Domestic Violence/Child Abuse deportation ground. Learn valuable tips on how to avoid deportation under these common deportation grounds and what relief is available in immigration court. Valuable materials include concise and complete written summaries of the law governing these grounds of deportation. Essential for removal defense and for counseling criminal defenders on how to avoid triggering deportation. Limited time $50 discount! On sale for $145 until August 31, 2004 To order, print and fax the order form at the end of this newsletter. [4] PRINT RESOURCES: For a discussion of drug offenses, see N. Tooby & K. Brady, Criminal Defense of Immigrants, Chapter 5 (3d ed. 2003); Norton Tooby, Aggravated Felonies (2003), which may be ordered at CriminalAndImmigrationLaw.com. See also C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure 71.05[2][d][ii] (2003); Dan Kesselbrenner & Lory Rosenberg, Immigration Law and Crimes: 7:26 (2004). [5] ARTICLE PART II: How to Make Your Own Drug List Comparison The following is an easy (though somewhat time-consuming) method for finding out what drugs in a specific state are not listed in the federal controlled substances schedules. On our website, we have posted an alphabetical list of the substances contained in the federal schedules (minus the salts, isomers, etc., of the various listed drugs) (current through April 26, 2004). To make an alphabetical proscribed drug list of the specific substances controlled in a specific state, for comparison purposes:

8 1. Locate the most recent state drug schedule in an electronic format, and paste this list into a word-processor document. 2. Delete all the superfluous language, section headings, etc. so that only a list of the individual drugs remains. Make sure to indicate the schedule in which each drug was listed. Give each drug with multiple names a number, and gave that same number to each A.K.A. 3. Use the "sort" function of the word processor program to alphabetize the federal list. To make a drug by drug comparison between the California and federal schedules: 4. Paste the Federal alphabetical list into the document that contains the state proscribed drug list. 5. Highlight the state list within the word processor document, and then sort both lists into a single alphabetical listing (with the state drugs still highlighted). 6. Going down the list, use the strikeout function to mark any highlighted/nonhighlighted drug pairs. These pairs each represent a specific controlled substance that appears on both the state and the federal lists. Strike these pairs from the list. 7. Return to the top of the list and use the "find" function to find any AKAs of the drugs stricken. Strike the AKAs. 8. After striking all drugs that are listed on both lists, the substances that remain are those on the state list but which do not appear on the federal controlled substances schedules. A conviction of an offense involving a state drug which is not on the federal list will not trigger deportation. This method produced 33 substances which are listed on the California lists, but not on the federal schedules [drug (a.k.a. code) (schedule)]: 1-(1-phenylcyclohexyl) morpholine (c30) (ii). 1-(1-phenylcyclohexyl) piperidine (c30) (ii). 17-methyltestosterone (13). 4-hydroxy-19-nortestosterone (iii). acetylfentanyl (c1) (i). androisoxazole (iii). androstenediol (iii). apomorphine (ii).

9 bolandiol (iii). bolasterone (iii). boldenone (iii). clostebol (iii). dihydromesterone (iii). ethylestrenol (iii). fluoxymesterone (iii). formyldienolone (iii). mesterolone (iii). methandriol (iii). methandrostenolone (iii). methenolone (iii). methyltrienolone (iii). n-[1- phenethyl-4-piperidinyl] acetanilide (c1) (i). n-[1-[2-(2-thienyl)ethyl]-4-piperidinyl] acetanilide (c2) (i). n-ethyl, n-methylamphetamine (c29) (ii). n-ethylmethamphetamine (c29) (ii). norbolethone (iii). norethandrolone (iii). normethandrolone (iii). oxandrolone (iii). oxymestrone (iii). pcm (c30) (ii). pcp (c30) (ii). phencyclidines (c30) (ii). quinbolone (iii). stanolone (iii). stanozolol (iii). stenbolone (iii). testosterone (iii). thiophene analog of acetylfentanyl (c2) (i). trenbolone (iii). A few things to keep in mind: The federal drug schedules are kept and updated by regulation. 21 C.F.R , et seq. It appears that Drug Enforcement Agency updates the drug schedules on a piecemeal (rather than annual) basis, so the list is constantly changing. Updates to the schedules are tracked on the following site: The drug schedules in a particular state may be maintained either by regulation or by statute (as in California). If by statute, the schedules may only be updated annually.

10 If the Gousse reasoning is applied in the particular jurisdiction in question, and the noncitizen is charged as an aggravated felon, the federal schedules to apply in making the comparison are those that existed at the time the immigration proceedings commenced, while the state schedules to apply are those that existed at the time of the conviction. If the client is not charged as an aggravated felon, the key comparison is between both drug schedules as they existed at the time of the conviction. ORDER FORM: Teleseminar CD - Firearms Drugs and Domestic Violence Deportation Grounds Order before August 31st: $145 After August 31st: $195 Please fax to Law Offices of Norton Tooby (510) Attention: Publications QUANTITY CD - Firearms Drugs and Domestic Violence Deportation Grounds PAYMENT METHOD Check (please make checks payable to Law Offices of Norton Tooby) Visa MasterCard American Express Card Number Expiration Date Signature Date First Name Last Name

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