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Deportation Lawyer – 9th Circuit Holds Felony Cultivation of Marijuana is Categorically an Aggravated Felony

Felony cultivation of marijuana in violation of Cal. Health & Safety Code §11358 is categorically an aggravated felony drug trafficking crime under INA §101(a)(43)(B).

In August 1999, Petitioner, a lawful permanent resident, was convicted of felony cultivation of marijuana under Cal. Health & Safety Code §11358. Petitioner was charged with deportability for having been convicted of a controlled substance. The immigration judge concluded that Petitioner’s conviction constituted an aggravated felony which rendered him ineligible for relief from removal. The BIA affirmed and Petitioner was deported to Mexico in August 2004. In November 2004, Petitioner was arrested in California and indicted under INA §276 as a previously deported alien found in the U.S. without the permission of the Attorney General or DHS.

Petitioner moved to dismiss the indictment, arguing that his prior deportation was invalid because the IJ failed to inform him that he was eligible for cancellation of removal.

Read the Decision here Download file


The district court concluded that the conviction was properly classified as an aggravated felony which barred Petitioner from relief. Petitioner conditionally pleaded guilty, subject to the right to appeal the validity of his prior deportation.

On review, the court explained that if Petitioner’s conviction under Cal. Health & Safety Code §11358 indeed constitutes an aggravated felony, he was not eligible for cancellation of removal and his deportation was proper. Under INA §101(a)(43)(B), an aggravated felony includes, “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” The term “drug trafficking crime” is defined as “any felony punishable under the Controlled Substances Act….” 18 USC §924(c)(2). In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”
Applying the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), the court compared the elements of Cal. Health & Safety Code §11358 to the generic definition of “drug trafficking” to determine whether the conduct proscribed by statute categorically falls within the generic definition. Cal. Health & Safety Code §11358 prohibits “planti[ing], cultivat[ing], harvest[ing], dr[ying], or process[ing] any marijuana.” Under 21 USC §841(b)(I)(D) and 18 USC §3359(a)(4), the manufacture of marijuana is punishable by up to five years imprisonment and is therefore, a felony. “Manufacture” means the “production” of a drug, 21 USC §802(15), and “production” includes “manufactur[ing], planting, cultivation, growing, or harvesting of a controlled substance.” 21 USC §802(22). Although Petitioner correctly pointed out that the term “drying” is not used in the Controlled Substances Act, the court rejected his argument that the act of “drying” alone would not qualify as an aggravated felony rendering §11358 categorically overbroad because the ordinary meaning of the term “production” includes the act of drying. See, e.g., United States v. Cordova Barajas, 360 F.3d 1037, 1041-42 (9th Cir. 2004) (sustaining a conviction for cultivation of marijuana under 21 USC §841(a)(1) and 18 USC §2 where officers found defendant outside a structure containing drying marijuana plants). Therefore, the court concluded that Petitioner’s conviction clearly fell within the meaning of the federal felony of manufacturing marijuana.

Next, Petitioner argued that because aiding and abetting liability is implicit in every California information, see Cal. Penal Code §971, it is possible that he was convicted as an accomplice, which would remove his conviction from the federal definition of aggravated felony. Petitioner argued that this is so because unlike federal law which punishes those convicted of aiding and abetting as principals, California extends aiding and abetting liability to the “natural and probable consequences” of the crime originally aided and abetted. The court rejected this argument on the ground that Petitioner had not demonstrated “a realistic probability…that [California] would apply its statute to conduct that falls outside the generic definition of [the] crime.” See Gonzalez v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007). The court concluded, therefore, that because California’s aiding and abetting liability is not sufficiently broader than that under federal law, even if Petitioner was convicted under an aiding and abetting theory, he would have been liable under federal law as well. The decision of the district court was affirmed.