The BIA released a decision today holding that a Florida conviction for criminal solicitation for the delivery of cocaine is a controlled substance offense. Matter of Juan Carlos Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009).
According to the BIA, “the respondent’s Florida conviction for soliciting the delivery of cocaine is a conviction for an offense under State law relating to a controlled substance that makes him removable from the United States under section 237(a)(2)((i) of the Act.”
This case sounds like more bad news for anyone interested in arguing that a conviction for a drug-related offense is not a CSO. But there might still be an argument to make that some convictions for criminal solicitation of a controlled substance are not CSOs if the conviction doesn’t specify that any or which particular CS was involved. If, for example, the statute says something generic like “controlled substance” instead of something specific like “cocaine” (as the conviction in this case did), then advocates could still argue that DHS has to prove it was a controlled substance as defined by the federal Controlled Substances Act.