There are two circumstances in which the defendant is not eligible for FFOA treatment of a qualifying offense:

 

(1)     The person cannot previously have “been convicted of violating a Federal or State law relating to controlled substances;” and

(2)     The person cannot have “previously been the subject of a disposition under this subsection . . . .” [19]

 

In other words, if the defendant has a prior state or federal conviction “relating to”[20] any controlled substance, of any kind, s/he is disqualified from FFOA treatment of the current conviction for possession of a controlled substance.  Second, if the person has previously received FFOA treatment, s/he is disqualified from receiving FFOA treatment for the current (second) offense.

[19] 18 U.S.C. § 3607(a)(1) & (2).

[20] This is the same phrase used in the controlled substance offense grounds of inadmissibility and deportability, suggesting that decisions defining the boundaries of those grounds may be used in this context as well.  INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II); INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B).

Other

PRACTICE ADVISORY " POST CON RELIEF " CONGRESS INTENDED ONLY VALID CONVICTIONS TO TRIGGER REMOVAL
The Ninth Circuit explained that applying common sense definition of conviction would not thwart the will of Congress: But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so ill-informed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla, 130 S. Ct. at 1486-87. We conclude that retroactive application of our decision today will not further the purposes of the immigration laws. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. Jul. 14, 2011) (en banc). The same reasoning applies to granting post-conviction relief where the underlying conviction was legally invalid.