A defendant who suffered a prior controlled substances conviction is not eligible for FFOA treatment, and therefore not eligible for Lujan treatment of an expunged controlled substances conviction.[27]  A defendant is disqualified from treatment under the FFOA if s/he has "been convicted of violating a Federal or State law relating to controlled substances . . . ."[28]  The plain meaning of this language appears to include convictions for offenses committed under state law that relate to controlled substances on the state lists, even though they are not on the federal controlled substances lists.  Therefore, the Paulus defense would not apply here.[29]  Moreover, even though a Ninth Circuit state conviction of solicitation to commit a controlled substances offense would not qualify as a controlled substance conviction or aggravated felony drug trafficking conviction for immigration purposes, a state solicitation conviction would nonethtless qualify as a state conviction relating to controlled substances for purposes of disqualifying the defendant from eligibility for FFOA treatment. 

[27] Aguiluz-Arellano v. Gonzales, 446 F.3d 980 (9th Cir. May 1, 2006) (petitioner’s conviction for being under the influence of a controlled substance did not fall within the scope of the Federal First Offender Act, as he had a prior drug conviction).

[28] 18 U.S.C. § 3607(a)(2).

[29] Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). (Conviction of drug offense involving substance prohibited under state but not federal law does not trigger immigration consequences of drug conviction)

STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT " STATE CONVICTION OF CONTROLLED SUBSTANCES OFFENSE THAT DOES NOT IDENTIFY THE DRUG DISQUALIFIES THE DEFENDANT FROM FFOA TREATMENT, EVEN THOUGH THE CONVICTION WOULD NOT CONSTITUTE A CONTROLLED SUBSTANCES GROUND OF DEPORTATION OR BAR TO RELIEF " PRACTICE ADVISORY
A state controlled substances conviction, that does not identify the specific controlled substance involved, does not trigger deportation as a controlled substances offense or drug-trafficking aggravated felony, where the state controlled substances schedules include one or more substances that are not on the federal controlled substances schedules. E.g., Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Ruiz-Vidal v. Gonzalez, 473 F.3d 1072 (9th Cir. 2007). The same holds true where the respondent offers the full record of conviction, which is insufficient to identify the particular drug involved, for purposes of triggering a bar to relief. Rosas-Castaneda v. Holder, ___ F.3d ___ (9th Cir. Jan 4, 2011)(the government has the burden of proving that an offense is an aggravated felony, even if the issue is whether the offense is a bar to relief like LPR cancellation); Young v. Holder, ___ F.3d ___, 2011 WL 257898 (9th Cir. Jan. 28, 2011) (California conviction for violating Health & Safety Code 11352(a) was not an aggravated felony for purposes of triggering the aggravated felony bar to LPR cancellation of removal, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), because the judicially noticeable documents in the record failed to establish that the conviction was necessarily for an aggravated felony: The lesson of Malta-Espinoza, Vidal, and Penuliar is that a court conducting a modified categorical analysis cannot rely on only the fact of a guilty plea and a charging document that merely recite the multiple theories under which a defendant can be convicted under an overly-inclusive statute to hold that the defendant actually commited a generic offense."). The same rule does not hold true, however, for purposes of an effective rehabilitative expungement of a first offense controlled substances conviction in the Ninth Circuit, where such an expungement effectively eliminates the conviction for all immigration purposes. This is because a defendant is disqualified from eligibility for the Federal First Offender Act by reason of a prior state or federal controlled substances conviction. 18 U.S.C. 3607(a). A state controlled substances conviction, even one involving a drug that is on the state but not the federal schedules, is sufficient to disqualify the defendant from FFOA treatment. It is therefore sufficient to disqualify the defendant from the benefits of the Lujan rule that state rehabilitative relief from a qualifying controlled substances conviction is sufficient to eliminate all immigration effects of the conviction in the Ninth Circuit.

Other

STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT " STATE CONVICTION OF CONTROLLED SUBSTANCES OFFENSE THAT DOES NOT IDENTIFY THE DRUG DISQUALIFIES THE DEFENDANT FROM FFOA TREATMENT, EVEN THOUGH THE CONVICTION WOULD NOT CONSTITUTE A CONTROLLED SUBSTANCES GROUND OF DEPORTATION OR BAR TO RELIEF " PRACTICE ADVISORY
A state controlled substances conviction, that does not identify the specific controlled substance involved, does not trigger deportation as a controlled substances offense or drug-trafficking aggravated felony, where the state controlled substances schedules include one or more substances that are not on the federal controlled substances schedules. E.g., Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Ruiz-Vidal v. Gonzalez, 473 F.3d 1072 (9th Cir. 2007). The same holds true where the respondent offers the full record of conviction, which is insufficient to identify the particular drug involved, for purposes of triggering a bar to relief. Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. Jan 4, 2011)(the government has the burden of proving that an offense is an aggravated felony, even if the issue is whether the offense is a bar to relief like LPR cancellation); Young v. Holder, 634 F.3d 1014, 2011 WL 257898 (9th Cir. Jan. 28, 2011) (California conviction for violating Health & Safety Code 11352(a) was not an aggravated felony for purposes of triggering the aggravated felony bar to LPR cancellation of removal, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), because the judicially noticeable documents in the record failed to establish that the conviction was necessarily for an aggravated felony: The lesson of Malta-Espinoza, Vidal, and Penuliar is that a court conducting a modified categorical analysis cannot rely on only the fact of a guilty plea and a charging document that merely recite the multiple theories under which a defendant can be convicted under an overly-inclusive statute to hold that the defendant actually commited a generic offense."). The same rule does not hold true, however, for purposes of an effective rehabilitative expungement of a first offense controlled substances conviction in the Ninth Circuit, where such an expungement effectively eliminates the conviction for all immigration purposes. This is because a defendant is disqualified from eligibility for the Federal First Offender Act by reason of a prior state or federal controlled substances conviction. 18 U.S.C. 3607(a). A state controlled substances conviction, even one involving a drug that is on the state but not the federal schedules, is sufficient to disqualify the defendant from FFOA treatment. It is therefore sufficient to disqualify the defendant from the benefits of the Lujan rule that state rehabilitative relief from a qualifying controlled substances conviction is sufficient to eliminate all immigration effects of the conviction in the Ninth Circuit.

CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF " NINTH CIRCUIT " CHOICE OF LAW " VENUE " DEPARTMENT OF STATE WILL APPLY THE LAW OF THE CIRCUIT CONTAINING THE PORT OF ENTRY THROUGH WHICH THE NONCITIZEN INTENDS TO ENTER THE UNITED STATES
The Secretary of State, in an unclassified Advisory Opinion to the U.S. Embassy in Montevideo, stated that an expunged Washington state misdemeanor "first time, minor controlled substance offense relating only to possession" will not trigger inadmissibility as long as the alien intends to enter the U.S. from a port of entry in the Ninth Circuit, following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Courtesy of the firm of Gibbs Houston Pauw in Seattle.