Second Circuit Finds that NJ Conviction for Distribution of Controlled Substance near a School is not an Aggravated Felony

The Second Circuit has determined that a New Jersey conviction for distribution a controlled substance near a school is not an aggravated felony. The Court noted that the New Jersey statute criminalizes dispensing a controlled substance near a school, while the federal school zone prohibition does not. In addition, New Jersey criminalizes conduct on school buses, while the federal statute only criminalizes conduct within 1000 feet of a school’s real property. Third, the general federal distribution statute exempts distribution of a small amount of marijuana for no remuneration, while the New Jersey statute does not. The Court determined the statute was not divisible, and as such, was not an aggravated felony.

The full text of Stankiewicz v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/576dc939-def0-4fbb-a9ea-818732765688/3/doc/21-6265_22-6121_opn.pdf

Second Circuit Finds that NY Possession for Sale is not a Controlled Substance Offense

The Second Circuit has determined that a New York conviction for possession for sale of a controlled substance is not a controlled substance offense because it criminalizes possession of several cocaine isomers not found in the federal drug statutes and the statute is indivisible.

The full text of US v. Chaires can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/doc/20-4162_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/hilite/

Ninth Circuit Finds that Idaho Conviction for Possession with Intent to Deliver is an Aggravated Felony

The Ninth Circuit has determined that Idaho conviction for possession with intent to deliver a controlled substance is an aggravated felony. First, the court determined the statute is divisible with respect to the identity of the drug. Second, the court found that Idaho’s mens rea requirement matches the federal requirements. Third, the court found that Idaho’s aiding and abetting liability is no broader than the federal counterpart.

The full text of Tellez-Ramirez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/29/22-1168.pdf

Third Circuit Finds PA DUI Statute Indivisible

The Third Circuit has determined that Pennsylvania’s DUI statute - which criminalizes driving under the influence of controlled substances - is overbroad and indivisible with respect to the identify of the substances the person was using. The court noted that under state law, jurors do not to unanimously agree what substance a defendant is under the influence of to convict.

The full text of Pesikan v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

Eighth Circuit Finds Kansas Drug Statute Divisible

The Eighth Circuit has determined that a Kansas statute criminalizing possession of any opiates, opium or narcotic drugs, or any stimulant is divisible with respect to the identity of the drug.

The full text of Barbosa v. Garland can be found here:

http://media.ca8.uscourts.gov/opndir/23/06/221655P.pdf

Eighth Circuit finds Missouri Definition of Cocaine Overbroad

The Eighth Circuit has determined that in 2003, Missouri’s definition of cocaine included isomers not encompassed by the current federal definition. “Because Missouri’s definition of cocaine included positional isomers while the federal definition does not, the Missouri definition is unambiguously broader than its federal counterpart. Moreover, Missouri courts have interpreted the Missouri drug schedule as making all isomers of cocaine illegal.”

The full text of US v. Myers can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/12/213443P.pdf

Eighth Circuit Finds MN Definition of Cocaine Overbroad

The Eighth Circuit has determined that Minnesota’s definition of cocaine is broader than the federal definition because it includes isomers of cocaine not found in the federal statute. The court declined to apply the realistic probability test, finding the statutory language was unambiguous about the type of isomers criminalized in Minnesota.

The full text of US v. Owen can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/10/213870P.pdf

Eighth Circuit Finds Iowa Cocaine isn't Really Cocaine

The Eighth Circuit has determined that Iowa’s definition of cocaine in 2013 is overbroad as compared to the federal definition because it included the cocaine analogue Ioflupane, which was excluded from the CSA in 2019. Practitioners will need to verify if the statutes at issue included or excluded the analogue in the time period relevant to their case.

The full text of United States v. Perez can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/08/212130P.pdf

Seventh Circuit Finds Indiana Definition of Methamphetamine Broader than Federal Definition

The Seventh Circuit has determined that Indiana’s definition of methamphetamine is broader than the federal definition. “Under federal law, methamphetamine is a Schedule II or III controlled substance that includes ‘its salts, isomers, and salt of isomers.’ Under federal law, ‘isomer’ of methamphetamine only refers to ‘the optical isomer.’” “Because the Indiana legislature chose to limit the types of isomers defining other drugs but did not do so with methamphetamine, we must read the schedules to define methamphetamine as including at least optical and positional isomers.” The court noted that as of 2020, Indiana had narrowed the definition of an isomer of methamphetamine to optical isomers only. However, that definition was not present at the time of the petitioner’s conviction.

The full text of Aguirre-Zuniga v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-16/C:21-1201:J:Jackson-Akiwumi:aut:T:fnOp:N:2891535:S:0

BIA Clarifies Meaning of "Elements"

The Board of Immigration Appeals has determined that “any fact that establishes or increases the permissible range of punishment is an element of the offense for federal purposes.” In so doing, it rejected the respondent’s argument that the identity of a controlled substance is only a “grading factor,” and not an “element,” under Pennsylvania state law.

The full text of Matter of German Santos can be found here:

https://www.justice.gov/eoir/page/file/1499291/download

Ninth Circuit Finds Montana Defines Cocaine more Broadly than Federal Law

The Ninth Circuit has determined that Montana criminalizes certain derivatives of cocaine not found in the federal definition of the drug.

The full text of U.S. v. House can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/15/20-30169.pdf

BIA Finds that NJ Drug Statute is Divisible

The Board of Immigration Appeals (BIA) has determined that a New Jersey statute criminalizing possession of a dangerous substance is divisible with respect to the identity of the controlled substance. The agency found several authoritative state law decisions that didn’t seemingly support its conclusion, but instead of concluding that state law does not consider the identity of the substance as an element, the BIA (in a well-choreographed tap dance) decided the decisions were so old as to not properly use the terms “means” and “element” as they are understood today. All in all, the decision reads as a fairly desperate attempt by the BIA to avoid the possibility that people convicted of drug possession in New Jersey won’t be deportable.

In the BIA’s defense, their analysis of the structure of the statute seems more consistent with case law, and less like an analysis focused on outcome only.

The full text of Matter of Laguerre can be found here:

https://www.justice.gov/eoir/page/file/1464011/download

Eleventh Circuit Rejects Overbreadth Challenge to FL Definition of Cocaine

The Eleventh Circuit has rejected a petitioner’s argument that Florida’s definition of cocaine is broader than the federal definition, finding the petitioner failed to prove the existence of nongeometric diastereomers of cocaine.

The full text of Chamu v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201913908.pdf

Second Circuit Finds CT Drug Conviction to be Aggravated Felony

The Second Circuit has determined that a Connecticut conviction for possession intent to sell/transportation/manufacture/offer a controlled substance is an aggravated felony and a controlled substance violation.

The full text of Chery v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/d36ae3c2-8d70-469e-a1f4-fd7b57c893b4/8/doc/18-1036_18-1835_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/d36ae3c2-8d70-469e-a1f4-fd7b57c893b4/8/hilite/

Eleventh Circuit Finds that MN Convictions are Removable Convictions

The Eleventh Circuit has determined that a Minnesota possession of a controlled substance conviction is divisible with respect to the identity of the substance, and that a Minnesota second-degree assault conviction is a crime of violence because it requires either the intentional use of violent force or the inducement of fear of immediate bodily harm. The court also determined that the detention of a detainee who obtains a stay of removal from the federal court is governed by 8 USC 1226, not 8 USC 1231.

The full text of Farah v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201912462.pdf

Fifth Circuit Finds TX Drug Conviction to be Aggravated Felony

The Fifth Circuit has determined that a Texas statute criminalizing manufacture or delivery of cocaine (which includes an offer to sell cocaine) is an aggravated felony. The court noted that the statute requires an intent to sell, which is analogous to the intent to the distribute found in the federal Controlled Substances Act. The court recognized that its decision creates a circuit split with the Ninth Circuit on solicitation offenses.

The full text of Ochoa-Salgado v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60519-CV0.pdf

Ninth Circuit Finds NV Drug Statute Divisible

The Ninth Circuit has determined that a Nevada drug statute is divisible with respect to the identity of the controlled substance involved in the offense.

The full text of United States v. Figueroa-Beltran can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/27/16-10388.pdf

Eighth Circuit Finds that Khat Contains a Substance in Federal Drug Schedules

The Eighth Circuit has determined that because khat includes a substance listed in the federal drug schedules, a conviction for possession of khat is a controlled substance violation.

The full text of Ahmed v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/04/193480P.pdf

Eighth Circuit Finds Iowa Drug Statute Divisible for Marijuana Offenses

The Eighth Circuit has determined that an Iowa drug statute is divisible between marijuana offenses and other drug offenses because it prescribes a different punishment for marijuana offenses than offenses related to other substances. Though the court did not have to reach the issue, the rationale suggests that the statute may not be divisible between other substances.

The full text of Aquino Arroyo v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/04/193032P.pdf

Fifth Circuit Finds TX Drug Statute Indivisible

The Fifth Circuit has determined that Texas Health & Safety Code Penalty Group 2A contains at least one substance not listed in the federal drug statutes. Moreover, the court found no case law or statutory indicators that the substances are elements of the offense, and thus, concluded that the statute is indivisible. The court remanded for the agency to determine if there is a realistic probability that Texas prosecutes offenses involving the drug not listed in the federal schedules.

The full text of Alejos-Perez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60256-CV0.pdf