Safe Havens

The aggravated felony drug trafficking ground of deportation[1] requires, as an essential element, that an offense involve a controlled substance listed on the federal schedules.  See § 7.65, supra.  Similarly, the controlled substances conviction ground of deportation[2] requires, as an essential element, that the offense be “related to” a controlled substance listed on the federal schedules.  See § 7.142, supra.

A “controlled substance” must be listed in the federal schedules in order to trigger deportation under the aggravated felony drug trafficking ground of deportation or under the controlled substances conviction ground of deportation.[3]  A number of drugs, however, are controlled under state law, but not under federal law.  Additionally, there are some substances that may be controlled under foreign law but not federal law, or not controlled at all.[4] 

A state controlled substances conviction, therefore, will not be sufficient to sustain deportability as an aggravated felony drug trafficking offense, or a controlled substances offense, if: (1) the drug schedules in the state of conviction include substances not listed under the federal schedules; (2) the statute of conviction may be violated with regard to one or more of those substances; and (3) either the record of conviction is completely silent as to the controlled substance involved, or the record of conviction specifically indicates that the conviction arose from an offense involving a substance that is not on the federal list.

Whether the drug involved in a controlled substances offense is on the federal list may not have any significant bearing on whether the offense is a crime of moral turpitude.  However, there are a number of non-CMT drug offenses from which a safe haven may be formed.  See, e.g., § § 8.2-8.5, supra.

            The conduct-based drug abuse or addiction ground of deportability[5] should be read to cover only abuse of, or addiction to, a drug on the federal lists.  Because of Congress’ specificity in requiring that the two primary conviction-based controlled substances grounds of deportation require the drug to be in the federal list, this ground of deportation should be so construed as well.  Failing that specificity, this ground of deportation would seem to violate due process by being void for vagueness, since it would have no boundaries other than the common sense definition of “drug,” which has many definitions even including aspirin, legally possessed prescription medications, over-the-counter cough syrups, and the like.[6]

[1] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). 

[2] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

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

[4] 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).

[5] INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii).

[6] See Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703 (1951).