(D)  Possession of Drug Paraphernalia.  The Ninth Circuit has held that a conviction of possession of drug paraphernalia, under an Arizona statute that provided multiple tests to ensure that an actual controlled substance was involved, constituted a conviction of an offense relating to a controlled substance. [1102]  Counsel, whose client has a conviction of possession of paraphernalia, may distinguish Luu-Le, if the statute of conviction is different[1103] from the Arizona statute in failing to ensure that the paraphernalia is in fact related to a controlled substance.  Luu-Le held an Arizona possession of drug paraphernalia conviction constituted a conviction related to controlled substances.  The Arizona offense in that case was structured to eliminate innocent uses of paraphernalia: Arizona has 14 tests to assure that convictions for violation of this statute are in fact drug-related.  By contrast, other paraphernalia possession statutes have no such tests.[1104]  California law-makers have considered the use of evidentiary tests for the use of paraphernalia, and have put them only in the law prohibiting stores from selling paraphernalia.[1105]  It is inappropriate for statutes such as the California paraphernalia law, lacking Arizona’s evidentiary protections, to be considered convictions relating to controlled substances.  The same argument may be made with respect to statutes prohibiting possession of a hypodermic needle.[1106]

[1102] Luu-Le v. INS, 224 F.3d 911 (9th Cir 2000).

[1103] E.g., California Health & Safety Code § 11364.

[1104] E.g., California Health & Safety Code § 11364.

[1105] Compare the 10-point test under the sale of paraphernalia statute for determining the purpose of the sale, California Health and Safety Code § 11364.5, with the absence of such tests in the possession section.

[1106] E.g., California Business & Prof. Code § 4149.

Seventh Circuit

Desai v. Mukasey, ___ F.3d ___, 2008 WL 818946 (7th Cir. Mar. 28, 2008) (Illinois conviction of Unlawful Delivery of a Look-Alike Substance, in violation of 720 ILCS 570/404(b), constitutes a conviction of an offense "relating to" a controlled substance, under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II): "This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did by distributing something that would lead one to believe it contained Psilocybin brings it into association with a federal controlled substance.").

Ninth Circuit

CONTROLLED SUBSTANCES - SOLICITATION
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.