INA §237(a)(2)(B)(i): Controlled Substance Convictions

INA §237(a)(2)(B)(i) covers a conviction after admission for violating, attempting to violate, or conspiring to violate a state, federal, or foreign law relating to a controlled substance as defined in 21 U.S.C. §802. The federal definition is therefore built into the removal ground.

The analysis should identify the exact statute of conviction, the controlled substance element, the version of the state and federal schedules that matter, and whether the conviction record establishes the federal connection DHS must prove.

The charge begins with INA §101(a)(48)(A). A formal judgment qualifies, and some deferred adjudications can also count when the federal conviction requirements are met. State labels do not control.

For controlled substance deportability, the defense should obtain certified criminal court records rather than rely on a rap sheet or case summary. The charging document, plea or verdict, judgment, sentencing order, and later modification orders can answer different immigration questions. Diversion, deferred adjudication, foreign dispositions, and later vacaturs should be analyzed under federal immigration law.

The Supreme Court in Mellouli v. Lynch held that the government must connect the conviction to a substance controlled under federal law. A state drug scheme can be broader than the federal schedules, creating a categorical issue.

Counsel should compare the statutory drug definitions, schedules, isomer language, and any state cases interpreting the substance element rather than assume that every state drug conviction matches federal law.

Matter of Dor and earlier precedent apply the categorical approach to determine whether the state conviction matches §237(a)(2)(B)(i). The focus is on what the conviction necessarily established, not a free ranging review of arrest allegations.

If the state statute is indivisible and reaches substances outside the federal definition under governing realistic probability law, the conviction may not categorically establish removability.

When a statute contains alternative drug elements rather than alternative means, the modified categorical approach can permit review of a limited record of conviction to identify the substance or statutory alternative of conviction.

The charging document, plea agreement, plea colloquy, judgment, and verdict materials can matter. Police reports should not be used simply to choose the most damaging drug when the categorical framework does not permit it.

Matter of Dor, 29 I&N Dec. 20 (BIA 2025), held that the time of conviction is the relevant point for determining whether the state conviction involved a federally controlled substance. The Board rejected a rule using the federal schedules in effect when removability is finally adjudicated.

For older marijuana and hemp convictions, the timing rule can change the result. Counsel should preserve the historical versions of both state and federal controlled substance law that were in effect when the conviction occurred.

Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025), held that the realistic probability test applies when a respondent argues that a state controlled substance definition is broader because of a textual mismatch involving isomers. Once DHS proves the conviction, the respondent must demonstrate a realistic probability of broader state prosecution for that mismatch theory.

This makes state prosecution research important. A defense based solely on different dictionary language may fail if current precedent requires evidence that the state actually applies the statute to the asserted nonfederal substance or isomer.

Unlike some removal provisions that require separate interpretation, §237(a)(2)(B)(i) expressly includes conspiracy and attempt to violate a controlled substance law. The conviction need not be for a completed possession, sale, or trafficking offense.

The categorical analysis still applies to the target drug offense and the controlled substance connection. An attempt label does not eliminate the need to identify the relevant federally controlled substance.

The statutory text includes laws of a foreign country as well as state and federal laws. Foreign convictions require reliable proof of the judgment, the offense, and the substance involved, often with certified translations.

Counsel should also evaluate whether the foreign disposition meets the federal immigration definition of conviction and whether any later foreign rehabilitation actually eliminates the conviction for immigration purposes.

The statute excludes a single offense involving possession for one's own use of 30 grams or less of marijuana. Matter of Davey and Matter of Dominguez-Rodriguez treat that language as a circumstance specific inquiry into the respondent's conduct on a single occasion.

The exception deserves its own factual record. Quantity, personal use, number of incidents, closely connected offenses, and whether any count was inherently more serious than simple possession can matter.

A vacatur based on a substantive or procedural defect may eliminate a conviction for immigration purposes, while relief entered solely for rehabilitation or immigration hardship may not. The basis for the criminal court order is critical.

Obtain the motion, transcript, order, prosecutor's position, and legal authority for any vacatur or plea withdrawal. The immigration analysis should be done before criminal counsel selects a remedy.

A sustained controlled substance deportability charge does not answer every relief question. Counsel should separately review cancellation, adjustment, waivers, asylum related protection, withholding, Convention Against Torture protection, VAWA remedies, post conviction options, and any other relief supported by the respondent's status and history. Controlled substance convictions can also affect inadmissibility, cancellation, asylum, good moral character, adjustment, and aggravated felony analysis.

The 30 gram marijuana exception in this deportability ground is not a universal waiver of all drug consequences. Each form of relief uses its own statutory language.

A practical §237(a)(2)(B)(i) analysis should proceed in a fixed order: confirm the immigration conviction, identify the statute and drug element, compare historical state and federal schedules under Dor, analyze divisibility and realistic probability under current circuit law and Felix-Figueroa, test the marijuana exception, and then review post conviction options and relief. Using the same sequence in the legal memorandum, exhibit list, and hearing preparation reduces the risk that a serious factual allegation will obscure a threshold statutory defect.

This sequence keeps schedule timing, categorical analysis, burden, and relief from becoming one undifferentiated drug case discussion.

Dor makes the time of conviction the comparison point, so current online drug schedules can be misleading in an older case. Counsel should save the state schedule, federal schedule, and statutory definitions that were effective on the conviction date.

This is particularly important for marijuana, hemp, synthetic substances, and isomer definitions that have changed over time.

Felix-Figueroa rejects some overbreadth arguments based only on a textual isomer mismatch. A respondent relying on that theory should research state prosecutions, charging practices, reported decisions, or other evidence showing actual application to nonfederal substances.

The precise burden can depend on the governing circuit and type of mismatch, so the final brief should identify the applicable realistic probability rule rather than assume one national formulation resolves every case.

Some drug statutes list substances as alternative elements; others define one broad controlled substance element by reference to a schedule. Divisibility analysis determines whether the record of conviction may identify a specific drug.

The defense should resist factual shortcuts. A laboratory report naming a drug does not always establish that the conviction necessarily rested on that substance if the statute is indivisible.

Paraphernalia, maintaining a drug premises, prescription fraud, and other drug related statutes can raise different categorical questions from simple possession. The phrase relating to a controlled substance is broad, but Mellouli still requires a federally controlled substance connection for conviction based removability.

The exact elements and incorporated state schedules should be researched for each offense rather than treating every drug themed conviction alike.

When DHS relies on a foreign conviction, the certified judgment, statutory text, disposition, and translation should be obtained. A foreign offense label may not reveal the controlled substance or whether the disposition meets INA §101(a)(48)(A).

Counsel should also investigate whether later foreign rehabilitation was merits based or merely rehabilitative for immigration purposes.

Controlled substance convictions can trigger deportability, inadmissibility, aggravated felony consequences, cancellation bars, good moral character issues, and discretionary concerns. Each consequence has its own statutory wording.

The 30 gram marijuana exception is therefore best treated as one row in a broader relief matrix rather than as a universal answer to a drug case.

DHS ordinarily begins with the statute of conviction and argues that the offense necessarily relates to a substance controlled under federal law. After Mellouli, that connection cannot be assumed merely because state law calls the offense a drug crime. Matter of Dor also makes the federal schedules at the time of conviction important, while Matter of Felix-Figueroa can affect how a claimed schedule mismatch is tested.

The response should therefore identify the exact state statute and version, the relevant state schedule, the federal schedule in force when the conviction occurred, and whether the statute is divisible as to substance. The government's theory succeeds only if the conviction fits the immigration ground under the correct categorical framework.

The working file should preserve historical law, not just current law. Obtain the statute of conviction, the state controlled substance schedules in effect on the conviction date, the federal schedules from the same period, the charging document, plea or verdict materials, judgment, and any record documents permitted by the modified categorical approach. Post conviction orders should be collected separately because their immigration effect depends on federal standards.

Laboratory reports or police narratives may be factually informative but are not automatically part of the categorical record. Their role should be identified before they are used, particularly when the statute is divisible and the modified categorical approach is in dispute.

The same conviction may raise a controlled substance deportability charge, a drug trafficking aggravated felony issue, inadmissibility, cancellation bars, or good moral character concerns. Those consequences are related but not interchangeable. A substance match sufficient for one rule does not automatically establish trafficking, and the 30 gram marijuana exception has its own factual inquiry.

Each possible consequence should be charted separately by statute, required proof, and available relief. That prevents an analysis of §237(a)(2)(B)(i) from silently importing the elements or burdens of a different drug provision.

Two shortcuts are particularly risky. First, comparing only today's schedules can miss the timing rule addressed in Matter of Dor. Second, identifying a textual difference between state and federal schedules does not always end the analysis because Matter of Felix-Figueroa addresses when a realistic probability showing may be required.

The safe method is chronological and statute specific: determine the conviction date, capture both relevant schedules, identify the precise mismatch, determine divisibility, and then apply controlling circuit and BIA law to that mismatch. The offense label and present day schedule are not substitutes for that analysis.

Start with the statute and schedules, then determine overbreadth, divisibility, and the permissible record of conviction. Only after that analysis should the case move to the marijuana exception, post conviction relief, or discretionary forms of relief. This ordering matters because a respondent should not concede removability simply to reach a relief argument.

Where the prosecution statute names multiple substances, the brief should explain whether those substances are elements or means and identify exactly what the conviction record establishes. If a schedule mismatch is asserted, the argument should address the current realistic probability law rather than rely on abstract wording alone.

The Immigration Judge should identify the conviction statute and version, the federal controlled substance universe at the time of conviction, whether the state statute reached substances outside that universe, and whether any divisible alternative was established by the permitted conviction record. If those steps do not produce the required federal substance connection, the deportability charge fails.

If the connection is established, the court should then analyze any marijuana exception or other defense separately. A trafficking aggravated felony allegation likewise requires its own statutory comparison rather than being treated as an automatic consequence of the controlled substance finding.