Luu-Le v. INS: 9th Circuit Rules Arizona Conviction for Possession of Drug Paraphernalia Is Deportable "Controlled Substance" Offense

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

LUU-LE V. INS: 9TH CIRCUIT RULES ARIZONA CONVICTION FOR POSSESSION OF DRUG PARAPHERNALIA IS DEPORTABLE "CONTROLLED SUBSTANCE" OFFENSE
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The United States Court of Appeals for the Ninth Circuit has issued a decision in a petition for review of a deportation order finding that a conviction for possession of drug paraphernalia is an offense "relating to a controlled substance" under former section 241(a)(2)(B)(i) (now section 237(a)(2)(B)(i)) of the Immigration and Nationality Act. Based on this conclusion, the court found that it does not have jurisdiction over the petition, which arose under the transitional judicial review rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

The petitioner in this case, Mr. Luu-Le, is a lawful permanent resident who was convicted in 1992 under an Arizona law that criminalizes possession of drug paraphernalia. Although the INS commenced deportation proceedings against him in February 1993, the Board of Immigration Appeals did not resolve his appeal of an adverse immigration judge decision until April 1997. At that time, the BIA ruled that Luu-Le was prohibited from obtaining a 212(c) waiver of deportability because of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

On appeal, the Ninth Circuit found that Luu-Le's petition for review of that decision is governed by the transitional rules of the IIRIRA. Under those rules, the court does not have jurisdiction to consider appeals brought by individuals who are deportable because of certain convictions, including a conviction for a controlled substance offense. Accordingly, the court's jurisdiction over the petition depends upon whether the conviction constitutes such an offense.

Examining the statute under which Luu-Le was convicted, the court noted that it requires possession of the paraphernalia to be "accompanied by the use, or intended use, of the paraphernalia for a drug-related purpose." Ariz. Rev. Stat. S 13-3415(A). The court found that this requirement is sufficient to establish that the offense "relat[es] to a controlled substance." Accordingly, the court concluded that it did not have jurisdiction and dismissed the petition.

Luu-Le v. INS, __ F.3d __, No. 97-70595 (9th Cir. Aug. 3, 2000).