9th Circuit: California conviction for offering to transport heroin is controlled substance offense for immigration purposes

In a decision released last week, a three-judge panel of the Ninth Circuit held that a California state conviction for offering to transport heroine, Cal. Health & Safety Code § 11352(a), does constitute a controlled substances offense under INA § 237(a)(2).  See United States v. Meza-Corrales, 183 F.3d 1116, 1127 (9th Cir. 1999)).  “The ordinary meaning of the term ‘relate’ is ‘to show or establish a logical or causal connection between.’” Mielewczyk, No. 07-7426, slip op. at 10414 (quoting Webster’s New International Dictionary 1916 (3d ed. 2002)).  

The Court then turned to the specific text of the statute of conviction “to determine whether it establishes a logical or causal connection to a controlled substance as defined in 21 U.S.C. § 802, section 102 of the Controlled Substances Act.”  Section 11352(a) of the California Health and Safety Code provides:

every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [certain substances specified within the California Uniform Controlled Substances Act] shall be punished by imprisonment in the state prison for three, four, or five years.

The Court found that this language “establishes a logical connection between the law and certain controlled substances because the offense must involve one of the listed controlled substances.”  Mielewczyk, No. 07-7426, slip op. at 10415.  Moreover, the Court explained

“Even offenses that do not require personal contact with the drug have the requisite connection because ‘we have
construed the ‘relating to’ language broadly,’ to incorporate laws specifically aimed at controlled substance activity, even if they do not require the use, possession, transportation, or sale of controlled substances.”  Mielewczyk, No. 07-7426, slip op. at 10415 (quoting Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. 2000)).

Despite this clear language linking a conviction under § 11352 to “certain controlled substances,” the Ninth Circuit concluded that a conviction under § 11352 does not “categorically” constitute a CSO under the federal Controlled Substances Act (CSA).   Mielewczyk, No. 07-7426, slip op. at 10415.  The key, the Court explained, is that INA § 237(a)(2)(b)(i) requires that the controlled substance involved in the commission of the criminal offense be one of the controlled substances listed in the federal CSA.   Mielewczyk, No. 07-7426, slip op. at 10415.  The California statute, however, “punishes activities involving controlled substances specified in the schedules of the California Uniform Controlled Substances Act” and that state drug control act defines “controlled substances” to include many substances that are not listed in the federal CSA.  Mielewczyk, No. 07-7426, slip op. at 10415.

As such, the Court turned to the modified categorical approach to determine whether Mielewczyk’s conviction actually involved a substances included in the federal CSA.  Mielewczyk, No. 07-7426, slip op. at 10415-16. 

“Under this approach, we determine whether a conviction constitutes a predicate offense for removal by examining ‘a narrow, specified set of documents that are part of the record of
conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.’” Mielewczyk, No. 07-7426, slip op. at 10416 (Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004)).

After examining the record of conviction, the Ninth Circuit concluded that the conviction indeed involved heroin because the charging document and plea agreement stated that heroin was involved.  Mielewczyk, No. 07-7426, slip op. at 10416.  Therefore, the Ninth Circuit found Mielewczyk removable under INA § 237(a)(2)(b)(i) for having been convicted of a CSO.  Mielewczyk, No. 07-7426, slip op. at 10416.

This case does hold some lights of hope for immigration attorneys.  First, the Ninth Circuit found that a California conviction for offering to transport heroin is not categorically a CSO for immigration purposes.  Consequently, another conviction under this same statute might involve a substance that is prohibited in California but not prohibited under the federal CSA thus failing to meet the requirement of a CSO under INA § 237(a)(2).  Second, the Ninth Circuit concluded that Mielewczyk’s conviction involved heroin because the charging document and the plea agreement stated as much.  However, charging documents and plea agreements often do not include such specific information.  Or, as is not infrequently the case, charging documents and plea agreements are not available.  Remember, in the deportation context it is the government’s burden to prove that the non-citizen is removable.  INA § 240(c)(3)(A).

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