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Keywords

statutedeportationpiracy
statutedeportationsustainedadmissibilitypiracy

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Lazo v. Wilkinson

Facts

Jaime Lazo, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident in 1961. He had a prior federal conviction for conspiracy to possess cocaine base and was previously subject to deportation proceedings, which were terminated in his favor. In 2008, after a conviction for burglary, the Department of Homeland Security initiated removal proceedings against him based on his 1999 conviction for possession of cocaine under California Health and Safety Code 11350.

Lazo is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on October 13, 1961. After being convicted in the 1980s on a federal charge of conspiracy to possess cocaine base with intent to distribute, Lazo was the subject of a previous deportation proceeding in the early 1990s. That proceeding was terminated in Lazo's favor in 1991 after an immigration judge granted him a waiver of inadmissibility under the since-repealed provisions of former 212(c) of the INA, 8 U.S.C. 1182(c) (Supp. II 1990), repealed by Pub. L. No. 104-208, Div. C, 304(b), 110 Stat. 3009, 3009-597 (1996). The current removal proceedings were instituted in 2008 after Lazo was convicted earlier that year of burglary in violation of California Penal Code 459.

Issue

Whether Lazo's conviction for possession of cocaine under California Health and Safety Code 11350 qualifies as a 'controlled substance offense' under the Immigration and Nationality Act, rendering him removable.

Whether Lazo's conviction for possession of cocaine under California Health and Safety Code 11350 qualifies as a 'controlled substance offense' under the Immigration and Nationality Act, rendering him removable.

Rule

Under 237(a)(2)(B)(i) of the Immigration and Nationality Act, an alien is removable if convicted of a violation of law 'relating to a controlled substance' as defined in the Controlled Substances Act.

Under 237(a)(2)(B)(i) of the Immigration and Nationality Act, an alien is generally removable if he or she has been convicted of a violation of a federal, state, or foreign law 'relating to a controlled substance,' as that term is defined in 102 of the Controlled Substances Act ('CSA'), 21 U.S.C. 802.

Analysis

The court applied the modified categorical approach to determine that California Health and Safety Code 11350 is a divisible statute, allowing the court to consult specific documents to ascertain the nature of Lazo's conviction. The court found that the documents clearly indicated that Lazo was convicted for possession of cocaine, which is classified as a controlled substance under federal law, thus satisfying the criteria for removability.

Applying the categorical approach to 237(a)(2)(B)(i), the Supreme Court has explained that this 'removal provision is . . . satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance' as defined in CSA 102. In assessing whether a conviction for a particular state offense counts as one 'relating to a controlled substance' under 237(a)(2)(B)(i), we begin by applying the so-called 'categorical approach,' under which a 'state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law.'

Conclusion

The court denied Lazo's petition for review, affirming that his conviction for possession of cocaine under California law constituted a removable offense under the Immigration and Nationality Act.

The immigration judge sustained the charge of removability and denied Lazo's request for voluntary departure, which was ultimately the only form of relief from removal that Lazo sought. The immigration judge concluded that 11350(a)'s sweep was too broad to be a categorical match for a 'controlled substance' offense under INA 237(a)(2)(B)(i), but she went on to hold that 11350(a) was a divisible statute and that, under a modified categorical approach, Lazo's conviction for possession of cocaine under that statute counted as a controlled substance offense.

Who won?

The government prevailed in the case, as the court upheld the BIA's determination that Lazo's conviction for possession of cocaine was a controlled substance offense, making him removable.

The BIA upheld that ruling, expressly agreeing that, under the modified categorical approach, Lazo's conviction under 11350(a) was a controlled substance offense under INA 237(a)(2)(B)(i).

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