An immigration judge in New York recently concluded that a state conviction from possession of a controlled substance isn’t a controlled substance offense for immigration law purposes. Matter of Nunez, slip op. (NY Imm. Court September 20, 2013) (Segal, IJ). The IJ therefore dismissed the removal proceedings.
This case involved an LPR convicted of criminal possession of a controlled substance in the seventh degree, N.Y. Penal Code § 220.03. DHS claimed that this conviction rendered him removable for having been convicted of a controlled substance offense (CSO) under INA § 237(a)(2)(B)(i). The IJ concluded that DHS ultimately failed to meet its burden of proving that the state conviction fits within the INA’s CSO provision by clear and convincing evidence. INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a).
To begin with, the IJ turned to the categorical approach of statutory interpretation and concluded that the state offense is broader than the federal definition used by the INA. In New York, the court explained, “chorionic gonadotropin” is a controlled substance. That substance, however, is not listed in the federal Controlled Substances Act, 21 U.S.C. § 812. Because the INA defines a CSO by reference to the federal definition of controlled substances, the federal list of prohibited substances is controlling. Matter of Nunez, slip op. at 2-3.
The court then went on to explain why the criminal complaint that DHS submitted were insufficient to show that the noncitizen was convicted of a federal CSO. The court explained that in New York a complaint shows only what a person is accused of having done. It cannot serve as a charging document “only if it has been converted into an information” by “supplement[ing it with] a ‘supporting deposition’ and other documents that ‘taken together satisfy the requirements for a valid information’.” Matter of Nunez, slip op. at 4. DHS failed to show that happened in Nuñez’s criminal case. As such, the IJ could not assume that the complaint that DHS submitted was in fact the charging document used to prosecute Nuñez. Matter of Nunez, slip op. at 4. Because the IJ could not consider it the charging document, the IJ could not include it in the record of conviction. Matter of Nunez, slip op. at 4.
Even had the IJ considered the complaint to be a charging document, it still would not have sustained DHS’s allegation for an independent reason. The IJ explained that it is required to determine the factual basis for the conviction. The way to do that when a person was convicted by plea is to examine the plea colloquy transcript, written plea agreement presented to the court, or a “record of comparable findings of fact adopted by the defendant upon entering the plea.” Matter of Nunez, slip op. at 5 (quoting Shepard v. United States, 544 U.S. 13, 20 (2005)). According to the IJ, the “misdemeanor complaint, alone, however, only establishes what substance the Respondent was accussed of possessing, not the substance the Respondent was convicted of possessing.” Matter of Nunez, slip op. at 5. Accordingly, the IJ could not be sure that Nuñez was convicted of possessing heroin; all it could be sure of was that he was accused of possessing heroin, as the complaint indicated. Matter of Nunez, slip op. at 5.
The IJ therefore concluded that DHS failed to meet its burden of proving that Nuñez was removable, and terminated proceedings.
Thanks to attorney Michael Z. Goldman for bringing this decision to my attention.