Aggravated Felonies

(A)  Paulus Rule.  In 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted of a violation of . . . any law or regulation relating to the illicit possession or traffic in narcotic drugs or marijuana . . . .”  In Matter of Paulus,[308] the BIA found that a noncitizen convicted of sale of an unidentified “narcotic”[309] did not fall within this ground of deportation because the INS could not prove that the “narcotic” at issue in the case was a “narcotic drug” listed under the federal drug schedules.

       At the time Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes, and the INS argued that a “generic” definition should be adopted that would have included whatever happened to be considered a “narcotic” in California or any other state.  The BIA rejected this argument on the basis of a California United States District Court decision that limited the term “narcotic drug”[310] to substances defined as a “narcotic drug” by federal law.[311]

Since then, Congress has specifically limited the definition of “controlled substances” to those substances defined as such by federal law.[312]  Congress has therefore adopted Paulus as a matter of law.  Where a noncitizen is charged as an aggravated felon on the basis of a state drug conviction, the government must therefore demonstrate by clear and convincing evidence that the substance that was the subject of the state criminal conviction is a substance listed in the federal drug schedules.[313]  There are also some substances that may be controlled under foreign law but not federal law, or not controlled at all.[314]  Where no particular controlled substance is identified in the state criminal record of conviction, the government cannot meet its burden unless it shows that every single drug listed in the state schedules is also included in the federal schedule.

[308] Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965).

[309] California Health & Safety Code § 11503.

[310] Former INA § 241(a)(11).

[311] See Mendoza-Rivera v. Del Guercio, 161 F.Supp. 473 (Cal. 1958), aff’d sub nom. Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir. 1959).

[312] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substances offense ground of inadmissibility); INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (controlled substances conviction deportation ground); INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (illicit drug trafficking aggravated felony definition).

[313] See INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[314] See Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. Jan. 31, 2005) (khat, a plant used as a traditional herbal stimulant in Africa, is not a controlled substance listed under federal law, and therefore noncitizen bringing khat into the United States could not be found inadmissible for having committed a controlled substances offense or for drug trafficking).