9 Cir: Cal. marijuana possession is categorically controlled substances offense

The U.S. Court of Appeals for the Ninth Circuit held that a conviction for possessing marijuana under California law is categorically a controlled substances offense (CSO) for immigration law purposes. Macias-Carreon v. Holder, No. 10-70380, slip op. (9th Cir. May 30, 2013) (Noonan, Wardlaw, and Murguía, J.). Judge Murguía wrote the panel’s decision.

This case involved an individual who entered without inspection and was later convicted of violating California Health and Safety Code § 11359, which prohibits “possess[ing] for sale any marijuana.” DHS charged Macias-Carreon as removable for having been convicted of a law relating to a controlled substance. INA § 212(a)(2)(A)(i)(II). Macias-Carreon, No. 10-70380, slip op. at 3. The IJ found that the noncitizen’s conviction constituted a CSO and ordered him removed.

On appeal to the BIA, Macias-Carreon claimed that the California statute is not categorically a CSO because it includes some drugs that are not controlled substances under the federal Controlled Substances Act. Because the critical question for purposes of removal is whether a crime falls into a category of removable offense as defined by federal law, it’s always necessary to know whether a particular drug conviction includes offenses that are not punished by federal law. Immigration attorneys occasionally use this important requirement to successfully argue that a drug conviction isn’t a CSO. The BIA, however, disagreed with Macias-Carreon. Macias-Carreon, No. 10-70380, slip op. at 4.

The Ninth Circuit had no trouble affirming the BIA’s position. In a short analysis, it explained that “California Health and Safety Code § 11359 prohibits the possession of marijuana for purposes of sale, and marijuana is a controlled substance under federal law.” Macias-Carreon, No. 10-70380, slip op. at 5. It added that the noncitizen failed to show a “realistic probability” that California prosecutes people under § 11359 when they have been found in possession of a substance that isn’t prohibited by the federal Controlled Substances Act. Macias-Carreon, No. 10-70380, slip op. at 5.