Tooby's California Post-Conviction Relief for Immigrants

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)