Why A Broad State Schedule Of Controlled Substances Matters To The Client In Removal Proceedings
Many practitioners handling cases at the intersection of immigration and criminal law understand the basic principle that for a state controlled substance conviction to lead to a person's removability, the controlled substance at issue must also be located on the federal drug schedules. At an elementary level, this means that if New York decided to include Twinkies as a controlled substance, and Client X was then convicted in New York for possession of Twinkies, Client X could not be removed from the United States unless Twinkies was also listed as a controlled substance on the federal schedules. In this scenario the New York state schedule would be deemed broader than the federal, and, importantly, it could not be argued that a New York controlled substance conviction categorically establishes removability. Instead, in such a situation a court would apply the modified categorical approach and the Immigration Judge would search the record of conviction to identify the controlled substance at issue.
How could a state drug schedule that is broader than the federal schedule be helpful to someone in removal proceedings? For one, it is not uncommon for DHS, especially with older, misdemenamor convictions, to fail to produce documents (or sufficiently reliable documents) that identify the particular substance a client was convicted of possessing or trafficking. Where DHS fails to do so in a state with a drug schedule that is broader than the federal schedule, a motion to terminate is appropriate: First, DHS loses in arguing the state controlled substance conviction categorically establishes removability; second, DHS loses under the modified categorical approach, because it has failed to produce evidence identifying the actual substance at issue. 
This principle may have been overlooked in New York for a number of years. A recent comparison of the New York and federal drug schedules performed by my office reveals at least one controlled substance that is located on the New York, but not the federal schedules: the steroid chorionic gonadotropin. (For you baseball fans, this is the substance Manny Ramirez was banned fifty games for using while a member of the Los Angeles Dodgers.)
In a motion to terminate recently filed by my office before Immigration Judge Alice Segal, Judge Segal accepted the fact that the New York definition of "controlled substance" included chorionic gonadotropin, a substance not located on the federal schedule, and that therefore a New York conviction for Possession of a Controlled Substance in the Seventh Degree (NYPL § 220.03) could not categorically establish removability.
New York practitioners should take note of the distinction between the State and federal controlled substance schedules and push the distinction aggressively when appropriate. And practitioners from all states should take the time to compare their state schedules with the federal equivalent. Doing so can be laborious, but can produce surprisingly helpful results.
1 INA § 237(a)(2)(B)(i).
2The federal controlled substance schedules are located at 21 C.F.R. §§ 1308.11-15; the corresponding New York schedules are listed at Section 3306 of the New York State Public Health Laws (on Westlaw, "NY CLS Pub Health § 3306").
3See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) (terminating removal proceedings where record was silent as to the narcotic involved in alien's California conviction, as it could not be said for immigration purposes that Paulus had been convicted of a law relating to a narcotic as defined on the federal schedule); Matter of Spaulding, 2004 WL 2943545 (BIA Nov. 2, 2004) (unpublished) (reversing Immigration Judge and terminating proceedings where, at time of conviction, two substances were listed in the Connecticut but not the federal controlled substance schedules, and it could not otherwise be determined what substance respondent was convicted of possessing); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-79 (9th Cir. 2007) (terminating case where California schedule listed narcotics not listed on federal equivalent and record of conviction was inconclusive as to the identity of the narcotic).
4 IJ Segal postponed for future oral argument whether the New York "misdemeanor complaint" submitted by DHS was sufficient to establish the identity of the controlled substance. See generally Thomas v. Att'y Gen., 625 F.3d 124 (3d Cir. 2010) (discussing the evidentiary limitations of New York misdemeanor complaints)
Michael Z. Goldman is an Immigration Attorney with offices in midtown Manhattan focusing on removal defense and family immigration. He has experience practicing in Immigration Court, and before the Board of Immigration Appeals, the U.S District Courts and the U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York, the United States District Court for the Southern District of New York, the United States District Court for the Eastern District of New York, the United States Court of Appeals for the Second Circuit, and the United States Court of Appeals for the Third Circuit. He is a member of the American Immigration Lawyers Association.
Michael would like to thank Carl Shusterman, whose litigation and writing on this issue inspired him to comb through the New York controlled substance schedules with a bottle of aspirin by his side.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.