All State Court Convictions for Possession of Drug Paraphernalia Are Not Necessarily Related To Controlled Substances under the Categorical or Modified Approaches for Immigration Removal

For at least the last fifteen years, the Board of Immigration Appeals (“BIA”) and a majority of United States Circuit Courts of Appeals have automatically affirmed the removal and inadmissibility of aliens under the controlled substances statutes of the Immigration and Nationality Act (“Act”), where the factual basis was a state drug paraphernalia conviction. Once a state court conviction document for drug paraphernalia is admitted into evidence in removal proceedings; removability or inadmissibility is practically assured by clear and convincing evidence. Respondents are then denied an opportunity to present evidence to break the nexus between a state drug paraphernalia conviction and a controlled substance conviction because it is not relevant. So, one may be deported or rendered inadmissible for a controlled substances conviction, even when the record evidence is absent a federal controlled substance, insofar as state drug paraphernalia convictions are concerned.