Realistic Probability Test in Controlled-Substance Cases

When a respondent must show a realistic probability that a state would prosecute conduct involving a nonfederally controlled substance, and how that inquiry fits within the categorical approach.

The realistic-probability test prevents a purely theoretical overbreadth argument from defeating a categorical match. Matter of Felix-Figueroa applies that principle to an asserted isomer mismatch and places the burden of establishing the realistic probability on the respondent while leaving DHS with the ultimate burden of deportability.

For realistic probability controlled substance immigration, the practitioner should map the realistic probability controlled substance immigration charge before making concessions. The realistic probability controlled substance immigration map should identify the conviction, the realistic probability controlled substance immigration statutory comparator, the governing realistic probability controlled substance immigration method, and the evidence that current realistic probability controlled substance immigration law permits.

The test asks whether the state actually applies its statute to conduct outside the asserted federal generic definition, not whether lawyers can imagine a hypothetical application.

Within realistic probability controlled substance immigration, this proposition defines the realistic probability controlled substance immigration dispute. The clause “The test asks whether the state actually applies its statute to conduct outside the asserted federal generic definition” must be linked to realistic probability controlled substance immigration authority before “not whether lawyers can imagine a hypothetical application.” is treated as established. Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 1 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

A respondent can ordinarily establish realistic probability through reported cases, charging records, statutory enforcement examples, or other reliable evidence of actual prosecution.

Within realistic probability controlled substance immigration, this proposition narrows the realistic probability controlled substance immigration dispute. The clause “A respondent can ordinarily establish realistic probability through reported cases” must be linked to realistic probability controlled substance immigration authority before “charging records” is treated as established. Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 2 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Matter of Felix-Figueroa rejects an isomer argument based solely on apparent textual breadth where the record did not establish actual state prosecution of a nonfederally controlled isomer.

Within realistic probability controlled substance immigration, this proposition controls the realistic probability controlled substance immigration dispute. The clause “Matter of Felix-Figueroa rejects an isomer argument based solely on apparent textual breadth” must be linked to realistic probability controlled substance immigration authority before “where the record did not establish actual state prosecution of a nonfederally controlled isomer.” is treated as established. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 3 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Matter of Navarro Guadarrama similarly explains the respondent's burden to establish realistic probability when relying on state schedule breadth.

Within realistic probability controlled substance immigration, this proposition structures the realistic probability controlled substance immigration dispute. The clause “Matter of Navarro Guadarrama similarly explains the respondent's burden” must be linked to realistic probability controlled substance immigration authority before “to establish realistic probability when relying on state schedule breadth.” is treated as established. Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 4 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

The doctrine should not be used to rewrite a statute whose elements are plainly broader under binding precedent; circuit law can affect when realistic probability is required.

Within realistic probability controlled substance immigration, this proposition changes the realistic probability controlled substance immigration dispute. The clause “The doctrine should not be used to rewrite a statute whose elements are plainly broader under binding precedent” must be linked to realistic probability controlled substance immigration authority before “circuit law can affect when realistic probability is required.” is treated as established. Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 5 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

DHS retains the ultimate burden to prove deportability by clear and convincing evidence even when the respondent bears the evidentiary burden on a realistic-probability contention.

Within realistic probability controlled substance immigration, this proposition directs the realistic probability controlled substance immigration dispute. The clause “DHS retains the ultimate burden to prove deportability by clear and convincing” must be linked to realistic probability controlled substance immigration authority before “evidence even when the respondent bears the evidentiary burden on a realistic-probability contention.” is treated as established. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 6 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Expert chemistry evidence may establish that a nonfederal isomer exists but may not by itself prove that the state actually prosecutes that substance under the statute.

Within realistic probability controlled substance immigration, this proposition governs the realistic probability controlled substance immigration dispute. The clause “Expert chemistry evidence may establish that a nonfederal isomer exists but may not” must be linked to realistic probability controlled substance immigration authority before “by itself prove that the state actually prosecutes that substance under the statute.” is treated as established. Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 7 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Historical charging practices are especially important because current state practice may differ from practice when the respondent was convicted.

Within realistic probability controlled substance immigration, this proposition resolves the realistic probability controlled substance immigration dispute. The clause “Historical charging practices are especially important because current state” must be linked to realistic probability controlled substance immigration authority before “practice may differ from practice when the respondent was convicted.” is treated as established. Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 8 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Divisibility remains a separate question: if drug identity is an element, conviction records may resolve the federal match without reaching a broad realistic-probability dispute.

Within realistic probability controlled substance immigration, this proposition frames the realistic probability controlled substance immigration dispute. The clause “Divisibility remains a separate question” must be linked to realistic probability controlled substance immigration authority before “if drug identity is an element” is treated as established. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 9 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

The argument should identify the exact nonfederal substance, isomer, analogue, or statutory category rather than asserting only that the state schedule is broader in the abstract.

Within realistic probability controlled substance immigration, this proposition limits the realistic probability controlled substance immigration dispute. The clause “The argument should identify the exact nonfederal substance” must be linked to realistic probability controlled substance immigration authority before “isomer” is treated as established. Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) supplies a published realistic probability controlled substance immigration reference for the legal method or qualifier involved.

A realistic probability controlled substance immigration record on rule 10 should identify the realistic probability controlled substance immigration document proving the conviction, the realistic probability controlled substance immigration source proving the legal rule, and the realistic probability controlled substance immigration fact that remains disputed. That rule-specific realistic probability controlled substance immigration structure keeps allegations from replacing the legally operative realistic probability controlled substance immigration requirement.

Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) matters to realistic probability controlled substance immigration because its holding addresses a realistic probability controlled substance immigration component reflected in this rule: The test asks whether the state actually applies its statute to conduct outside the asserted federal generic definition, not whether lawyers can imagine a hypothetical application.

Applying Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) to realistic probability controlled substance immigration also requires attention to this separate realistic probability controlled substance immigration proposition: A respondent can ordinarily establish realistic probability through reported cases, charging records, statutory enforcement examples, or other reliable evidence of actual prosecution. The realistic probability controlled substance immigration brief should use the case for those propositions and avoid extending the realistic probability controlled substance immigration holding beyond its procedural posture.

Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) matters to realistic probability controlled substance immigration because its holding addresses a realistic probability controlled substance immigration component reflected in this rule: Matter of Felix-Figueroa rejects an isomer argument based solely on apparent textual breadth where the record did not establish actual state prosecution of a nonfederally controlled isomer.

Applying Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) to realistic probability controlled substance immigration also requires attention to this separate realistic probability controlled substance immigration proposition: Matter of Navarro Guadarrama similarly explains the respondent's burden to establish realistic probability when relying on state schedule breadth. The realistic probability controlled substance immigration brief should use the case for those propositions and avoid extending the realistic probability controlled substance immigration holding beyond its procedural posture.

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) matters to realistic probability controlled substance immigration because its holding addresses a realistic probability controlled substance immigration component reflected in this rule: The doctrine should not be used to rewrite a statute whose elements are plainly broader under binding precedent; circuit law can affect when realistic probability is required.

Applying Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) to realistic probability controlled substance immigration also requires attention to this separate realistic probability controlled substance immigration proposition: DHS retains the ultimate burden to prove deportability by clear and convincing evidence even when the respondent bears the evidentiary burden on a realistic-probability contention. The realistic probability controlled substance immigration brief should use the case for those propositions and avoid extending the realistic probability controlled substance immigration holding beyond its procedural posture.

A realistic probability controlled substance immigration file should integrate three distinct realistic probability controlled substance immigration propositions. First: The test asks whether the state actually applies its statute to conduct outside the asserted federal generic definition, not whether lawyers can imagine a hypothetical application. Second: Matter of Navarro Guadarrama similarly explains the respondent's burden to establish realistic probability when relying on state schedule breadth. Third: Expert chemistry evidence may establish that a nonfederal isomer exists but may not by itself prove that the state actually prosecutes that substance under the statute.

Those realistic probability controlled substance immigration propositions determine the realistic probability controlled substance immigration documents worth collecting. Certified records should prove realistic probability controlled substance immigration elements and sentence; historical materials should prove realistic probability controlled substance immigration timing when timing matters; broader proof should be reserved for a circumstance-specific realistic probability controlled substance immigration qualifier. The final realistic probability controlled substance immigration brief should assign each realistic probability controlled substance immigration burden and request a precise realistic probability controlled substance immigration ruling.

A realistic probability controlled substance immigration file should integrate three distinct realistic probability controlled substance immigration propositions. First: A respondent can ordinarily establish realistic probability through reported cases, charging records, statutory enforcement examples, or other reliable evidence of actual prosecution. Second: The doctrine should not be used to rewrite a statute whose elements are plainly broader under binding precedent; circuit law can affect when realistic probability is required. Third: Historical charging practices are especially important because current state practice may differ from practice when the respondent was convicted.

Those realistic probability controlled substance immigration propositions determine the realistic probability controlled substance immigration documents worth collecting. Certified records should prove realistic probability controlled substance immigration elements and sentence; historical materials should prove realistic probability controlled substance immigration timing when timing matters; broader proof should be reserved for a circumstance-specific realistic probability controlled substance immigration qualifier. The final realistic probability controlled substance immigration brief should assign each realistic probability controlled substance immigration burden and request a precise realistic probability controlled substance immigration ruling.

A realistic probability controlled substance immigration file should integrate three distinct realistic probability controlled substance immigration propositions. First: Matter of Felix-Figueroa rejects an isomer argument based solely on apparent textual breadth where the record did not establish actual state prosecution of a nonfederally controlled isomer. Second: DHS retains the ultimate burden to prove deportability by clear and convincing evidence even when the respondent bears the evidentiary burden on a realistic-probability contention. Third: Divisibility remains a separate question: if drug identity is an element, conviction records may resolve the federal match without reaching a broad realistic-probability dispute.

Those realistic probability controlled substance immigration propositions determine the realistic probability controlled substance immigration documents worth collecting. Certified records should prove realistic probability controlled substance immigration elements and sentence; historical materials should prove realistic probability controlled substance immigration timing when timing matters; broader proof should be reserved for a circumstance-specific realistic probability controlled substance immigration qualifier. The final realistic probability controlled substance immigration brief should assign each realistic probability controlled substance immigration burden and request a precise realistic probability controlled substance immigration ruling.

A realistic probability controlled substance immigration file should integrate three distinct realistic probability controlled substance immigration propositions. First: Matter of Navarro Guadarrama similarly explains the respondent's burden to establish realistic probability when relying on state schedule breadth. Second: Expert chemistry evidence may establish that a nonfederal isomer exists but may not by itself prove that the state actually prosecutes that substance under the statute. Third: The argument should identify the exact nonfederal substance, isomer, analogue, or statutory category rather than asserting only that the state schedule is broader in the abstract.

Those realistic probability controlled substance immigration propositions determine the realistic probability controlled substance immigration documents worth collecting. Certified records should prove realistic probability controlled substance immigration elements and sentence; historical materials should prove realistic probability controlled substance immigration timing when timing matters; broader proof should be reserved for a circumstance-specific realistic probability controlled substance immigration qualifier. The final realistic probability controlled substance immigration brief should assign each realistic probability controlled substance immigration burden and request a precise realistic probability controlled substance immigration ruling.

A realistic probability controlled substance immigration file should integrate three distinct realistic probability controlled substance immigration propositions. First: The test asks whether the state actually applies its statute to conduct outside the asserted federal generic definition, not whether lawyers can imagine a hypothetical application. Second: DHS retains the ultimate burden to prove deportability by clear and convincing evidence even when the respondent bears the evidentiary burden on a realistic-probability contention. Third: The argument should identify the exact nonfederal substance, isomer, analogue, or statutory category rather than asserting only that the state schedule is broader in the abstract.

Those realistic probability controlled substance immigration propositions determine the realistic probability controlled substance immigration documents worth collecting. Certified records should prove realistic probability controlled substance immigration elements and sentence; historical materials should prove realistic probability controlled substance immigration timing when timing matters; broader proof should be reserved for a circumstance-specific realistic probability controlled substance immigration qualifier. The final realistic probability controlled substance immigration brief should assign each realistic probability controlled substance immigration burden and request a precise realistic probability controlled substance immigration ruling.