Guerrero-Silva v. Holder
March 31, 2010
**Controlled substance offense, CH&SC 11361(b) (marijuana to minor), 30 gram exception**
Petitioner’s conviction under California Health and Safety Code § 11361(b) for “furnish[ing], administer[ing], or giv[ing], or offer[ing] to furnish, administer, or give,” marijuana to a minor older than fourteen qualifies as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) and therefore renders him removable. The exception to removability for a “single offense involving possession for one’s own use of 30 grams or less of marijuana” does not apply here because the actions CH&SC § 11361(b) prohibits—“furnish[ing], administer[ing], or giv- [ing], or offer[ing] to furnish, administer, or give”—are actions that, by definition, do not include “possession for one’s own use.” Petitioner’s argument that the statute includes solicitation offenses and therefore he cannot be removal because recent case law has held that solicitation offenses are not removable offenses is foreclosed by Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009)That case holds that a conviction under CH&SC § 11352(a) qualified as a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statute of conviction by its own terms is a state law ‘relating to a controlled substance.’ CH&SC § 11361(b) is similarly a state law “specifically aimed at controlled substance offenses.”
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