CRIMES INVOLVING CONTROLLED SUBSTANCES 18.2-248.1 Sale, gift,…

CRIMES INVOLVING CONTROLLED SUBSTANCES

18.2-248.1 Sale, gift, distribution or possession with intent to sell, give, or distribute
controlled substance

Elements
   - sell, give, distribute or possess with intent to sell, give or distribute marijuana
   (a) violation with respect to:
        (1) less than ½ oz. of marijuana is class 1 misdemeanor
        (2) more than ½ oz but not more than 5 pounds is class 5 felony
        (3) more than 5 pounds is felony punishable by 5-30 years
   - if prove that gave, distributed, or possessed with intent to give or distribute
        marijuana only as an accommodation to another and not with intent to profit from
        any consideration received or expected nor to induce the recipient or intended
        recipient of the marijuana to use or become addicted to or dependent upon such
        marijuana, class 1 misdemeanor
   (b) class 4 felony
   - give, distributes, or possesses marijuana
   - as an accommodation and not with intent to profit
   - to an inmate of a state or local correctional facility
   (c) imprisonment of 5-30 years
   - manufactures marijuana OR
   - possesses marijuana with intent to manufacture such substance
   - not for his own use
   (d) minimum 5 year sentence for third or subsequent felony offense under this section

Crime involving moral turpitude
         This offense is probably a crime involving moral turpitude because the statute has
a knowing requirement. See Josephs v. Comm., 390 S.E.2d 491 (Va. Ct. App. 1990)
(reasoning that possession of a controlled drug gives rise to defendant's knowledge of its
character). The BIA has held that where drug distribution or possession offenses involve
a knowing requirement, they are crimes involving moral turpitude. See Matter of
Khourn, 21 I&N Dec. 1041 (BIA 1997). The BIA has also held that a statute punishing
the unlawful manufacture, sale, gift or distribution of drugs was a crime involving moral
turpitude. Matter of Y, 2 I&N Dec. 600 (BIA 1946). Therefore, a conviction under this
statute is probably a crime involving moral turpitude.

Aggravated felony
         (a)(1) Gift or distribution or possession with intent to give, distribute less than ½
        oz of marijuana
        Controlled substances
        A conviction under this section of the statute, which punishes distribution, etc. of
½ oz. of marijuana or less, is not necessarily an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). This section of the statute does not require remuneration, so the offense
therefore does not come within the common understanding of an "illicit trafficking
offense," which requires some commercial element. See Lopez v. Gonzales, 127 S. Ct.



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625 (2006); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). The Virginia statute
punishes the gift of less than ½ oz. Also, under Virginia law, the definition of the term
"distribute" extends well beyond the transfer of drugs for remuneration. See Wood v.
Comm., 197 S.E.2d 200 (Va. 1973) (interpreting the term "distribute" a predecessor to
Va. Code Ann. § 18.2-248.1 to include "not only the illegal sale, barter, exchange or gift
of controlled drugs but also any delivery or transfer, actual or constructive, of possession
or title to such drugs from one person to another."). In addition, in the federal statutes,
the term "distribution" does not necessarily mean "sale" because 21 U.S.C. § 841(d)(3)
gives a lighter punishment to distribution for no remuneration of a small amount of
marijuana. Id.; see also 21 U.S.C. §§ 802(11), (8) (defining distribution of a controlled
substance as delivering such substance, and defining delivering as the actual,
constructive, or attempted transfer of a controlled substance). Therefore, not all offenses
punishable under this statute have a commercial nature such that it is a trafficking
offense.
         In addition, the offense is not a felony punishable under 18 U.S.C. § 924(c)(2) as
required by 8 U.S.C. § 1101(a)(43)(B). See Lopez v. Gonzales, 127 S. Ct. 625 (2006);
Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). Under 21 U.S.C. § 841(b)(4), a
violation for distribution of a small amount of marijuana for no remuneration is treated as
a simple possession offense under 21 U.S.C. § 844, which is a misdemeanor offense in
the federal system. Because it would not be punishable as a felony in the federal system,
it is not an aggravated felony. Lopez v. Gonzales, 127 S. Ct. 625 (2006).
         A conviction under this section of the statue is divisible. A conviction under this
section of the statute is likely to be an aggravated felony if the record of conviction
reflects that the offense had a commercial element. See Matter of Davis, 20 I&N Dec.
536 (BIA 1992). However, the BIA has held that for a drug trafficking offense to
constitute an aggravated felony, it must carry a maximum punishment of more than one
year. See Matter of Davis, 20 I&N Dec. 536 (BIA 1992); Matter of Yanez-Garcia, 23
I&N Dec. 390 (BIA 2002); Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA 2002). The
Virginia offense is punishable as a class 1 misdemeanor and therefore does not exceed
punishment of one year. Nonetheless, the Supreme Court in Lopez reasoned that any
drug distribution offense that has a commercial element is an aggravated felony because
it involves illicit trafficking in a controlled substance. Therefore, if the record of
conviction reflects that the distribution was commercial in nature, it is probably an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B).

       (a)(2) and (3) Gift or distribution or possession with intent to give, distribute more
       than ½ oz of marijuana
       Controlled substances
       Convictions under these sections are probably aggravated felonies because they
are punishable as felonies under 18 U.S.C. § 924(c)(2) as required by 8 U.S.C. §
1101(a)(43)(B). See Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 841(a)
punishes distribution, dispensing, or possession with intent to distribute a controlled
substance. Also, the conviction is a felony under both the state and federal systems.
Therefore, it is an aggravated felony. It is possible that the gift or distribution of a little
more than ½ oz. of marijuana for no remuneration is not an aggravated felony because it




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is not punishable as a felony under the federal statutes and does not involve illicit
trafficking in a controlled substance. See analysis for Va. Code Ann. § 18.2-248.1(a)(1).

        (a) Accommodation section
        Controlled substances
        An offense under the section of (a) of the statute, which punishes a defendant for
giving, distributing or possessing with intent to give or distribute marijuana as an
accommodation to another individual and not to profit thereby, is not an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). A conviction under this section would not meet
the definition of illicit trafficking, since it explicitly states that a defendant would seek no
remuneration for the drug. See Lopez v. Gonzales, 127 S. Ct. 625 (2006); Matter of
Davis, 20 I&N Dec. 536 (BIA 1992). Also, the offense is not punishable as a felony
under either state or federal law. See Lopez, 127 S. Ct. 625. Under 21 U.S.C. §
841(b)(4), a conviction for distribution of a small amount of marijuana for no
remuneration is treated as a simple possession offense under 21 U.S.C. § 844, which is a
misdemeanor offense. Therefore, a conviction under this statute is not a drug trafficking
aggravated felony under 8 U.S.C. § 1101(a)(43)(B).

         (b) Accommodation for inmate
         Controlled substances
         A conviction under this section of the statute is not an aggravated felony under 8
U.S.C. § 1101(a)(43)(B). A conviction under this section would not meet the definition
of illicit trafficking, since it explicitly states that a defendant would seek no remuneration
for the drug. See Lopez v. Gonzales, 127 S. Ct. 625 (2006); Matter of Davis, 20 I&N
Dec. 536 (BIA 1992). In addition, a conviction under this section of the statute is not an
aggravated felony because it is not punishable as a felony in the federal system. See
Lopez, 127 S. Ct. 625. 21 U.S.C. § 841(a) punishes distribution, dispensing, or
possession with intent to distribute a controlled substance. 21 U.S.C. § 841(b)(4) treats
distribution for no remuneration as a misdemeanor under the federal system.

        (c) Manufacture or possession with intent to manufacture
        Controlled substances
        A conviction under this section of the statute is an aggravated felony under 8
U.S.C. § 1101(a)(43)(B) because the offense in punishable as a felony under federal law.
Manufacturing and possessing with intent to manufacture a drug are both punished as a
felonies under 18 U.S.C. § 924(c)(2), and therefore meet the definition of aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). See Lopez v. Gonzales, 127 S. Ct. 625 (2006).
Manufacturing and possessing with intent to manufacture are punished as felonies under
21 U.S.C. § 841(a).

       (d) Third or subsequent offense
       Controlled substances
       A conviction under this section of the statute may be an aggravated felony under 8
U.S.C. § 1101(a)(43)(B). If the defendant is convicted of a subsequent offense under the
Controlled Substances Act, federal laws treat the subsequent offense as a felony. See 21
U.S.C. § 841(b)(3). However, in order for this offense to be an aggravated felony, it is



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probably necessary for the record of conviction from the prior offense to be part of the
record of conviction for the subsequent offense, because this is required by the federal
system. See Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006).
       If the original offense is a felony under federal la w, any subsequent offense is an
aggravated felony under federal law. See analysis for sections of Va. Code Ann. § 18.2-
248.1.

Other immigration consequences
        An conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession for one's own use
of 30 grams or less of marijuana. Because this statute does not punish simple possession
but rather possession with intent to distribute, give, sell, etc., it is not likely to come
within the exception.

18.2-248.01 Transporting controlled substances into the Commonwealth

Elements
   - transport into the Commonwealth
   - by any means
   - with intent to sell or distribute
   - one ounce or more of cocaine, coca leaves or any salt, compound, derivative or
      preparation thereof

Crime involving moral turpitude
       This offense is a crime involving moral turpitude because it punishes knowing
transportation of drugs, since there is an intent to sell element in the statute. See Matter
of Khourn, 21 I&N Dec. 1041 (BIA 1997). The BIA has also held that a statute
punishing the unlawful manufacture, sale, gift or distribution of drugs was a crime
involving moral turpitud e. Matter of Y, 2 I&N Dec. 600 (BIA 1946).

Aggravated felony
        Controlled substances
        Transportation with intent to sell or distribute is an aggravated felony because it is
punishable as a felony under the 18 U.S.C. § 924(c) as required by 8 U.S.C. §
1101(a)(43)(B). See Lopez v. Gonzales, 127 S. Ct. 625 (2006). This offense is similar to
importation of a controlled substance, which is punished under 21 U.S.C. § 952
(importation of controlled substances into the territory of the U.S.). The fact that the
Virginia statute does not punish importation into the U.S. is of no importance in
determining whether the substantive elements match up because the importation into the
U.S. is merely a federal jurisdiction requirement. See Matter of Vasquez-Muniz, 23 I&N
Dec. 1415 (BIA 2000). In addition, this offense is an "illicit trafficking in a controlled
substance" offense because the offense is commercial in nature. See Lopez, 127 S. Ct.
625; Matter of Barrett, 20 I&N Dec. 171 (BIA 1990).




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Other immigration consequences
        A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession fo r one's own use
of 30 grams or less of marijuana. Because this statute does not punish simple possession
but rather transportation with intent to distribute, give, sell, etc., and the drug is not
marijuana, it does not come within the exception.

18.2-248.5 Illegal stimulants and steroids

Elements
(A) punishment for 1-10 years
    - knowingly manufacture, sell, give, distribute, or possess with intent to
        manufacture, sell, give or distribute
    - any anabolic steroid
(B) class 1 misdemeanor
    - knowingly sell or otherwise distribute
    - without prescription
    - to a minor any pill, capsule, or tablet containing any combination of caffeine and
        ephedrine sulfate

Crime involving moral turpitude
       This offense is a crime involving moral turpitude because it punishes knowing
transportation of drugs, since there is an intent to sell element to the statute. See Matter
of Khourn, 21 I&N Dec. 1041 (BIA 1997). The BIA has also held that a statute
punishing the unlawful manufacture, sale, gift or distribution of drugs to be a crime
involving moral turpitude. Matter of Y, 2 I&N Dec. 600 (BIA 1946).

Aggravated felony
        (A) Manufacture, sell, give, distribute, or possess with intent to do above
        Controlled substances
        A conviction under this section of the statute is an aggravated felony under 8
U.S.C. § 1101(a)(43)(B). Manufacture, sale, distribution, or possession with intent to
distribute are punishable as felonies in the federal system. See Lopez v. Gonzales, 127 S.
Ct. 625 (2006); 21 U.S.C. § 841(a) (punishing manufacture, sale, distribution, or
possession with intent to distribute). Anabolic steroids are on federal schedule III, and
the Virginia offense punishes manufacturing, selling, giving or possession with intent to
manufacture, sell, give or distribute such steroids.

       (B) Sale or distribution to minor
       Controlled substances
       A conviction under this section of the statute is an aggravated felony under 8
U.S.C. § 1101(a)(43)(B) because selling or distributing to a minor any controlled
substance is punishable as a felony in the federal system. See Lopez v. Gonzales, 127 S.
Ct. 625 (2006); 21 U.S.C. § 859(a) (punishing sale of controlled substances to minor);
Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). Although this statute punishes



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distribution of a chemical or combination thereof and not a controlled substance, this
offense is still punishable as a felony under 18 U.S.C. § 924(c). 21 U.S.C. § 841(g)(1)
punishes the distribution of a listed chemical as a felony. Ephedrine is a list I chemical in
the federal system. 21 U.S.C. § 802(34)(C). Therefore, this Virginia offense is an
aggravated felony.

Other immigration consequences
         A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession for one's own use
of 30 grams or less of marijuana. Because this statute does not punish simple possession
but rather manufacture, sale, distribution, or possession with intent to distribute, give,
sell, etc., and the drug is not marijuana, it does not come within the exception.

18.2-250 Simple possession of a controlled substance

Elements
   - knowingly or intentionally possess a controlled substance
   - punishment and classification vary depending on schedule of drug

Crime involving moral turpitude
        A conviction under this statute is probably a crime involving moral turpitude.
Because the language of the statute reads "it is unlawful for any person knowingly or
intentionally to possess a controlled substance," the guilty mind requirement will render
the conviction a crime involving moral turpitude. See, e.g., Matter of Abreu-Semino, 12
I&N Dec. 775 (BIA 1968) (where intent is not mentioned in statutes defining simple
possession, there is no crime involving moral turpitude); Matter of R-, 4 I&N Dec. 644
(BIA 1952) (conviction for unlawful dispensing of drugs is not crime involving moral
turpitude because there is no element of intent, motive or knowledge for a conviction).

Aggravated felony
        Controlled substances
        A conviction under this statute is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). A conviction under this section does not meet the definition of illicit
trafficking, since the offense involves possession only. See Lopez v. Gonzales, 127 S. Ct.
625 (2006); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). In addition, a conviction
under this section of the statute is not an aggravated felony because it is not punishable as
a felony in the federal system. See Lopez, 127 S. Ct. 625. A first time simple possession
offense is not punishable as a felony in the federal system. 21 U.S.C. § 844(a).
Therefore, a conviction under this Virginia statute is not an aggravated felony.

Other immigration consequences
        A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession for one's own use
of 30 grams or less of marijuana. However, the drugs punishable by these schedules



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include drugs other than marijuana. Marijuana possession is punished separated under
Va. Code Ann. § 18.2-250.1. Therefore, none of the offenses punishable under this
statute will fit within the exception to the ground of deportability.

18.2-250.1 Possession of marijuana unlawful

Elements
(A) misdemeanor
   - knowingly and intentionally
   - possess marijuana
   - second possession offense carries heavier punishment, but still class 1
       misdemeanor

Crime involving moral turpitude
       This offense probably is a crime involving moral turpitude because it involves
knowingly and intentionally possessing a controlled substance and therefore it is not a
mere regulatory statute. See, e.g., Matter of Abreu-Semino, 12 I&N Dec. 775 (BIA 1968)
(where intent is not mentioned in statutes defining simple possession, there is no crime
involving moral turpitude); Matter of R-, 4 I&N Dec. 644 (BIA 1952) (conviction for
unlawful dispensing of drugs is not crime involving moral turpitude because there is no
element of intent, motive or knowledge for a conviction).

Aggravated felony
        First offense simple possession
        Controlled substances
        A conviction under this statute is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). A conviction under this section does not meet the definition of illicit
trafficking, since the offense involves possession only. See Lopez v. Gonzales, 127 S. Ct.
625 (2006); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). In addition, a conviction
under this section of the statute is not an aggravated felony because it is not punishable as
a felony in the federal system. See Lopez, 127 S. Ct. 625. A first time simple possession
offense is not punishable as a felony in the federal system. 21 U.S.C. § 844(a).
Therefore, a conviction under this section of the statute is not an aggravated felony.

        Second offense simple possession
        Controlled substances
        A conviction under this section of the statute may be an aggravated felony under 8
U.S.C. § 1101(a)(43)(B). If the defendant is convicted of a subsequent offense under the
Controlled Substances Act, federal laws treat the subsequent offense as a felony. See
Lopez v. Gonzales, 127 S. Ct. 625 (2006); 21 U.S.C. § 841(b)(3). However, in order for
this offense to be an aggravated felony, it is probably necessary for the record of
conviction from the prior offense to be part of the record of conviction for the subsequent
offense, because this is required by the federal system. See Berhe v. Gonzales, 464 F.3d
74 (1st Cir. 2006).




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Other immigration consequences
        A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession for one's own use
of 30 grams or less of marijuana. Because this statute punishes simple possession of
marijuana, it is possible that a conviction will fit within the exception, unless the record
of conviction indicates that the defendant possessed more than 30 grams of marijuana or
that the defendant possessed such drug for other than his or her own use. A second
offense for possession of marijuana will not fit within the exception because the
exception only applies to one simple possession of marijuana offense.

18.2-251.2 Possession and distribution of flunitrazepam

Elements
   - knowingly
   - manufacture, sell, give, distribute or possess flunitrazepam

Crime involving moral turpitude
        This offens e is probably a crime involving moral turpitude because it involves
knowingly and intentionally possessing or distributing a controlled substance and
therefore it is not a mere regulatory statute. See, e.g., Matter of Abreu-Semino, 12 I&N
Dec. 775 (BIA 1968) (where intent is not mentioned in statutes defining simple
possession, there is no crime involving moral turpitude); Matter of R-, 4 I&N Dec. 644
(BIA 1952) (conviction for unlawful dispensing of drugs is not crime involving moral
turpitude because there is no element of intent, motive or knowledge for a conviction).

Aggravated felony
         Controlled substances
         A conviction under this statute is an aggravated felony under 8 U.S.C. §
1101(a)(43)(B) because the offense is punishable as a felony under federal law. See
Lopez v. Gonzales, 127 S. Ct. 625 (2006); 21 U.S.C. § 959 (possession of flunitrazepam
is a felony). In addition, 21 U.S.C. § § 841(a) punishes as a felony the manufacture, sale,
distribution, or possession with intent to distribute a controlled substance. Therefore, a
conviction under this Virginia statute is an aggravated felony.

Other immigration consequences
        A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only exception to
the controlled substance ground of deportability is a simple possession for one's own use
of 30 grams or less of marijuana. Because this statute punishes distribution offenses and
the possession offenses punishable do not involve marijuana, any conviction under this
statute does not come within the exception to the ground of deportability.




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18.2-251.4 Defeating drug and alcohol screening tests

Elements
1) sell, give away, distribute, transport, or market human urine
             o with the intent of using the urine to defeat a drug or alcohol screening test
         OR
2) attempt to defeat a drug or alcohol test by the substitution of a sample;
         OR
3) adulterate a urine or other bodily fluid sample
             with the intent to defraud a drug or alcohol screening test

Crime involving moral turpitude
       A conviction under this statute is probably a crime involving moral turpitude
because the offense involves fraud or deceit as an essential element. See Jordan v.
DeGeorge, 341 U.S. 223 (1951).

Aggravated felony
        Controlled substances
        A conviction under this statute is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). A conviction under this statute is not an offense that involves illicit
trafficking in a controlled substance, since urine is not a controlled substance. See Lopez
v. Gonzales, 127 S. Ct. 625 (2006); Matter of Davis, 20 I&N Dec. 171 (BIA 1990). It is
also not punishable as a felony in the federal system because it is not listed in any of the
federal statutes included in the aggravated felony definition at 8 U.S.C. § 1101(a)(43)(B).
        Fraud offense
        A conviction under this statute is an aggravated felony as an offense involving
fraud or deceit under 8 U.S.C. § 1101(a)(43)(M)(i) if the loss to the victim exceeds
$10,000. Because this offense rarely involves a financial loss to a victim, it is probably
not an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).

Other immigration consequences
        Defrauding drug test
        A conviction under this section of the statute will probably render a non-citizen
deportable for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B).
While it is possible that this offense is not a crime relating to a controlled substance, the
"relating to" language of 8 U.S.C. § 1227(a)(2)(B) is broad and therefore, it is likely that
the offense of defrauding a drug test is a crime relating to a controlled substance. See
Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (holding that possession of paraphernalia is a
crime relating to a controlled substance because the crime is linked to drugs). The only
exception to the controlled substance ground of deportability is simple possession for
one's own use of 30 grams or less of marijuana. This offense does not fit within the
exception because it is not a possession of marijuana offense.




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        Defrauding alcohol test
        A conviction under this section of the statute will not render a non-citizen
deportable for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B)
if the defendant is convicted for defrauding an alcohol test because alcohol is not on the
federal controlled substances list.

18.2-255 Distribution of certain drugs to persons under 18 prohibited

Elements
(A) punishable for 10-50 years
    - person who is at least 18 years
    - knowingly and int entionally
        (i) distribute any drug classified in schedules I-IV or marijuana to any person
             under 18 years of age who is at least 3 years his junior; OR
        (ii) cause any person under 18 years of age to assist in such distribution of any
             drug classified in schedules I-IV or marijuana
(B) class 6 felony
    - person who is at least 18 years old
    - knowingly and intentionally
        (i) distribute any imitation controlled substance to a person under 18 years of age
                             who is at least 3 years his junior; OR
        (ii) cause any person under 18 years of age to assist in such distribution of any
                             imitation controlled substance

Crime involving moral turpitude
       (A)(i) and (ii) Distribution to minors or causing minors to assist in distribution
       This offense is probably a crime involving moral turpitude because the statute has
a knowing and intentional requirement. See Josephs v. Comm., 390 S.E.2d 491 (Va. Ct.
App. 1990) (reasoning that possession of a controlled drug gives rise to defendant's
knowledge of its character). The BIA has held that where drug distribution or possession
offenses involve a knowing requirement, they are crimes involving moral turpitude. See
Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). The BIA has also held that a statute
punishing the unlawful manufacture, sale, gift or distribution of drugs is a crime
involving moral turpitude. Matter of Y, 2 I&N Dec. 600 (BIA 1946). If the defendant is
convicted of causing minors to distribute controlled substances, this offense is also a
crime involving moral turpitude because the BIA has held that aiding and abetting
offenses are crimes involving moral turpitude if the underlying offense is a crime
involving moral turpitude. See Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of
Martinez, 16 I&N Dec. 336 (BIA 1977).

        (B)(i) and (ii) Distribution of imitation controlled substance or causing minors to
        assist in distribution of imitation controlled substance
        A conviction under these sections of the statute are probably crimes involving
moral turpitude because they involve fraud or deceit. See Jordan v. DeGeorge, 341 U.S.
223 (1951). If the defendant is convicted of causing minors to distribute imitation
controlled substances, this offense is also a crime involving moral turpitude because the



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BIA has held that aiding and abetting offenses are crimes involving moral turpitude if the
underlying offense is a crime involving moral turpitude. See Matter of Short, 20 I&N
Dec. 136 (BIA 1989); Matter of Martinez, 16 I&N Dec. 336 (BIA 1977).

Aggravated felony
        (A)(i) and (ii) Distribution to minors or causing minors to assist in distribution
        Controlled substances
        A conviction under either of these sections of the statute is an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B). The offense of distribution to children under 18 is
punishable as a felony in the federal system, under 21 U.S.C. § 859, and therefore is an
aggravated felony. See Lopez v. Gonzales, 127 S. Ct. 625 (2006). The offense of causing
a minor to assist in distribution is punishable as a felony under 21 U.S.C. § 861.
Therefore, a conviction under either of these sections of the statute is an aggravated
felony.

          (B)(i) and (ii) Distribution of imitation controlled substance or causing minors to
          assist in distribution of imitation controlled substance
          Controlled substance
          A conviction under this section of the statute for distribution of an imitation
controlled substance is not necessarily an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). The offense is not punishable as a felony in the federal system. See
Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 841(a)(2) punishes the
distribution of a counterfeit substance. However, a conviction under 21 U.S.C. §
841(a)(2) requires that the counterfeit substance be a controlled substance. See U.S. v.
Sampson, 140 F.3d 585 (4th Cir. 1988) (holding that counterfeit cocaine made of candle
wax, flour and baking soda does not constitute a "counterfeit substance" within meaning
of 21 U.S.C. § 841(a)(2) because it is not a controlled substance). Therefore, if a
defendant is convicted of distributing a substance that is not a controlled substance at all,
this conviction is not an aggravated felony. In addition, the offense does not involve
illicit trafficking in a controlled substance if the substance is not a controlled substance.
See Lopez, 127 S. Ct. 625; Matter of Davis, 20 I&N Dec. 536 (BIA 1992).
          A conviction for causing minors to assist in the distribution of an imitation
controlled substance is probably not an aggravated felony. Although the offense of
causing a minor to assist in distribution is punishable under 21 U.S.C. § 861, the
defendant must cause a minor to assist in violating other portions of the controlled
substance laws. Because distribution of an imitation controlled substance is not
necessarily an aggravated felony, causing a minor to distribute imitation controlled
substances is not likely to be an aggravated felony. See Sampson, 140 F.3d 585.
          If the record of conviction reflects that the imitation substance was actually a
controlled substance on the federal list, this conviction is an aggravated felony.
          Fraud offense
          A conviction under this section of the statute is probably an offense involving
fraud or deceit and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) if
the loss to the victim exceeds $10,000. A conviction for causing a minor to distribute an
imitation controlled substance is an aggravated felony under 8 U.S.C. §
1101(a)(43)(M)(i) if the loss to the victim exceeds $10,000 because a conviction for



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aiding and abetting is an aggravated felony if the underlying offense is an aggravated
felony. See Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007).

Other immigration consequences
        (A)(1) and (2) Distribution to minors or causing minors to assist in distribution
        A conviction under this section of the statute will render a non-citizen deportable
for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only
exception to the controlled substance ground of deportability is a simple possession for
one's own use of 30 grams or less of marijuana. Because this statute does not punish
simple possession but rather distribution, it does not come within the exception.

         (B)(1) and (2) Distribution of imitation controlled substance or causing minors to
        assist in distribution of imitation controlled substance
        A conviction under this section of the statute will probably render a non-citizen
deportable for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B).
Because the offense involves distribution of an imitation controlled substance, it is less
likely to be a crime relating to a controlled substance. However, given the broad nature
of the words "relating to," it is likely that a conviction under either of these sections will
be a crime relating to a controlled substance. See Luu-Le v. INS, 224 F.3d 911 (9th Cir.
2000) (holding that possession of paraphernalia is a crime relating to a controlled
substance because the crime is linked to drugs).

18.2-255.1 Distribution, sale or display of printed material advertising instruments
for use in administering marijuana or controlled substances to minors

Elements
    - knowingly
    - sell, distribute, or display for sale to a minor
    - any book, pamphlet, periodical, or other printed matter that he knows advertises
         for sale any instrument, device, article, or contrivance for advertised use in
         unlawfully ingesting, smoking, administering, preparing or growing marijuana
         or a controlled substance

Crime involving moral turpitude
        A conviction under this statute is probably a crime involving moral turpitude
because the statute has a knowing and intentional requirement. The BIA has held that
where a drug distribution or possession offense involve s a knowing requirement, it is a
crime involving moral turpitude. See Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997).
The BIA has also held that a statute punishing the unlawful manufacture, sale, gift or
distribution of drugs to be a crime involving moral turpitude. Matter of Y, 2 I&N Dec.
600 (BIA 1946). Although this statute punishes the knowing distribution, sale or display
for sale of advertisements for drug paraphernalia, it is probably a crime involving moral
turpitude. The BIA reasoned in Matter of Khourn that drug distribution was morally
turpitudinous because the defendant intends to corrupt others. Following this reasoning,
since the use of paraphernalia is to take drugs, it is likely that this statute punishes acts




                                             168
that equally corrupt others, especially minors, as the statute punishes the sale of such
advertisements to minors.

Aggravated felony
        Controlled substances
        A conviction under this statute is an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). The acts punished under this statute are punishable as a felony in the
federal system. See Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 863(a)
punishes the sale or offering for sale of drug paraphernalia, which has the same elements
as the Virginia statute. Therefore, this offense is an aggravated felony because the
elements of the Virginia offense are analogous to the elements of the federal felony.

 Other immigration consequences
        A conviction under this statute will probably render a non-citizen deportable for a
crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). Although the
statute punishes sale, distribution, or display of advertisement of paraphernalia, it is
probably a crime relating to a controlled substance due to the broad language of "relating
to" in 8 U.S.C. § 1227(a)(2)(B). See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000)
(holding that possession of drug paraphernalia is a crime relating to a controlled
substance for the purposes of 8 U.S.C. § 1227(a)(2)(B)). The only exception to the
controlled substance ground of deportability is a simple possession for one's own use of
30 grams or less of marijuana. Because this statute does not punish simple possession, it
does not come within the exception.

18.2-255.2 Prohibiting the sale of drugs on or near certain properties

Elements
(A)
- manufacture, sell, or distribute or possess with intent to sell, give or distribute
- any controlled substance, imitation controlled substance or marijuana
        (i) upon the property, including the buildings and grounds, of any public or
        private institution of higher education; or child day care center; or
        (ii) upon public property or any property open to public use within 1,000 feet of
        such school property; or
        (iii) on any school bus;
        (iv) upon a designated school bus stop, or upon either public property or any
        property open to the public use which is within 1,000 feet of such school bus stop,
        during the time when school children are waiting to be transported or picked up
        from school or a school-sponsored activity
        (v) upon the property, including the buildings and grounds, of any publicly owned
        or publicly operated recreation or community center facility or any public library;
        (vi) upon the property of any state facility or upon public property or property
        open to public use within 1,000 feet of such institution
(B)
- second or subsequent conviction under this statute punishable by 1-5 years
- sale of marijuana only as an accommodation to another individual and not with intent to



                                             169
 profit or induce the recipient to use or become addicted to or dependent upon controlled
 substance punishable as class 1 misdemeanor

Crime involving moral turpitude
        A conviction under this statute is probably a crime involving moral turpitude.
The BIA has held that a statute punishing the unlawful manufacture, sale, gift or
distribution of drugs was a crime involving moral turpitude. Matter of Y, 2 I&N Dec. 600
(BIA 1946). The BIA has reasoned that a statute punishing the knowing distribution of
drugs was a crime involving moral turpitude because the offense was inherently
turpitudinous, since it involves corrupting others by distributing drugs. See Matter of
Khourn, 21 I&N Dec. 1041 (BIA 1997). Even if the defendant is punished under the
section for distribution of imitation drugs, this offense is probably a crime involving
moral turpitude because it involves fraud and deceit. See Jordan v. DeGeorge, 341 U.S.
223 (1951).

Aggravated felony
         (A) Manufacture, sell, or distribute or possess with intent to sell, give or distribute
         a controlled substance on certain properties
         Controlled substances
         A conviction under this section of the statute is not necessarily an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B) because not all offenses punishable under the
Virginia statute are punishable as a felony under the federal analogue statute. See Lopez
v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 860 punishes manufacture, distribution,
dispensing, or possessing with intent to manufacture, distribute, or dispense a controlled
substance on certain properties. Not all of the properties are the same in the Virginia
statute and the federal statute. The Virginia statute punishes a defendant for sale in many
of the same places punishable under the federal statute; however, the Virginia statute
additionally punishes the sale of drugs on a school bus , at a bus stop or in front of a
daycare center. Because the statutes do not have the same elements, the Virginia statute
is divisible. Therefore, it is necessary to consult the record of conviction to determine
whether this offense is an aggravated felony.

        (A) Manufacture, sell, or distribute or possess with intent to sell, give or distribute
        an imitation controlled substance
        Controlled substances
        The offense of distribution of an imitation controlled substance is probably not an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because it is not punishable under the
federal statutes as a felony. See Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. §
841(a)(2) punishes the distribution of a counterfeit substance. However, because the
counterfeit substance must still be a controlled substance, distribution of a substance that
is not a controlled substance at all cannot be punished under this statute. See U.S. v.
Sampson, 140 F.3d 585 (4th Cir. 1988) (holding that counterfeit cocaine made of candle
wax, flour and baking soda does not constitute "counterfeit substance" within meaning of
21 U.S.C. § 841(a)(2)).




                                              170
        The offense is also not an illicit trafficking in a controlled substance because the
substance is not a controlled substance. See Lopez, 127 S. Ct. 625; Matter of Davis, 20
I&N Dec. 536 (BIA 1992).
        Therefore, a Virginia conviction under this section is not necessarily an
aggravated felony. However, if the record reflects that the imitation substance was
actually a controlled substance on the federal list, then a conviction under this section of
the statute is an aggravated felony.

        (B) Distribution for no remuneration of small amount of marijuana
        Controlled substances
        A conviction under this section of the statute is not necessarily an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). See Lopez v. Gonzales, 127 S. Ct. 625 (2006).
Distribution of a small amount of marijuana for no remuneration is punishable as a
misdemeanor in the federal system. See 21 U.S.C. § 841(b)(4). However, the federal
statute punishing distribution on school and other grounds, 21 U.S.C. § 860, does not
make any exception in punishment for distribution of a small amount of marijuana for no
remuneration. Therefore, because the elements of the Virginia offense are similar to the
elements of 21 U.S.C. § 860, which is punishable as a felony, a conviction under this
section of the Virginia statute is probably an aggravated felony. However, it is necessary
to consult the record of conviction because not all locations of the offense in Virginia are
punishable under 21 U.S.C. § 860. See analysis for Va. Code Ann. § 18.2-255.2(A).

Other immigration consequences
        Manufacture, sell, or distribute or possess with intent to sell, give or distribute a
        controlled substance
        A conviction under this section of the statute will render a non-citizen deportable
for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). The only
exception to the controlled substance ground of deportability is a simple possession for
one's own use of 30 grams or less of ma rijuana. Because most of the offenses punished
under this section punish possession with intent to distribute, give, sell, etc., it is not
likely to come within the exception. However, a defendant can fit within the exception if
the offense is for simple possession of marijuana only and the record of conviction
indicates that the amount is 30 grams or less.

        Manufacture, sell, or distribute or possess with intent to sell, give or distribute an
        imitation controlled substance
        A conviction under this section of the statute will probably render a non-citizen
deportable for a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B).
Because the offense involves distribution of an imitation controlled substance, it is less
likely to be a crime relating to a controlled substance. However, given the broad nature
of the words "relating to," it is likely that these offenses will be crimes relating to a
controlled substance. See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (holding that
possession of paraphernalia is a crime relating to a controlled substance because the
crime is linked to drugs).




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18.2-258 Knowingly keeping, establishing, permitting house where people are under
the influence of drugs or selling or manufacturing drugs

Elements
- owner, lessor, agent of any lessor, manager, chief executive officer, operator, or tenant
- knowingly permits, establishes, keeps or maintains
- common nuisance, defined as:
       - office, store, shop, restaurant, hall, theater, poolroom, clubhouse, storehouse,
         warehouse, dwelling house, apartment, building of any kind, vehicle, vessel,
         boat, or aircraft
       - with the knowledge of the owner, lessor, age nt of any such lessor, manager,
         chief executive officer, operator, or tenant thereof
       - is frequented by persons under the influence of illegally obtained controlled
         substances or marijuana
       - or for the purpose of illegally obtaining possession of, manufacturing or
         distributing controlled substances or marijuana
       - or is used for the illegal possession, manufacture, or distribution of controlled
         substances or marijuana

Crime involving moral turpitude
        The BIA has held that knowingly maintaining or permitting a house of
prostitution is a crime involving moral turpitude. See Matter of Lambert, 11 I&N Dec.
430 (BIA 1965); Matter of W, 3 I&N Dec. 231 (BIA 1948). Although this Virginia
statute does not punish the keeping of a house of prostitution but rather a house where
drugs are used, manufactured, or sold, it is probably a crime involving moral turpitude.
The offenses that happen inside the house are crimes involving moral turpitude and
therefore the owner's knowledge that such events are going on will likely render this
offense a crime involving moral turpitude. See, e.g., See Matter of Khourn, 21 I&N Dec.
1041 (BIA 1997) (holding that a statute punishing the knowing distribution of drugs was
a crime involving moral turpitude because the offense was inherently turpitudinous since
it involves corrupting others by distributing drugs); Matter of Y, 2 I&N Dec. 600 (BIA
1946) (holding that a statute punishing the unlawful manufacture, sale, gift or distribution
of drugs is a crime involving moral turpitude).

Aggravated felony
        Controlled substances
        A conviction under this statute is probably an aggravated felony under 8 U.S.C. §
1101(a)(43)(B) because it is punishable as a felony in the federal system. See Lopez v.
Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 856 punishes as a felony the maintenance
of a place where drugs are manufactured or sold or used. The Virginia statute also
punishes the maintenance of a place where people are under the influence of illegally
obtained controlled substances, which is similar to keeping a place where drugs are used
under the federal statute. But see Eudave-Mendez v. Keisler, 2007 U.S. App. LEXIS
23415 (9th Cir. 2007) (holding that a state statute punishing the knowing maintenance of
a drug house was not an aggravated felony because the state statute did not punish a
defendant for knowingly and intentionally maintaining the drug house). Therefore, a



                                             172
conviction under this Virginia statute is probably an aggravated felony, as only the Ninth
Circuit has found that such a conviction is not. Because this offense is probably an
aggravated felony, a subsequent offense under this statute is also an aggravated felony.

Other immigration consequences
         A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). Although the statute
does not actually punish use or distribution of controlled substances, but rather
maintaining a house where such activity is going on, it is likely to come within this
ground of deportability because of the broad reading of "relating to" of 8 U.S.C. §
1227(a)(2)(B). See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (holding that possession
of paraphernalia is a crime relating to a controlled substance because the crime is linked
to drugs). The only exception to the controlled substance ground of deportability is a
simple possession for one's own use of 30 grams or less of marijuana. Since the acts
punished under this statute do not involve possession, no conviction under this statute
will fit within the exception.

18.2-258.1 Obtaining drugs, procuring administration of controlled substances, etc.,
by fraud, deceit or forgery

Elements
(A)
- obtain or attempt to obtain any drug or procure or attempt to procure the administration
  of any controlled substance or marijuana
         (i) by fraud, deceit, misrepresentation, embezzlement, or subterfuge; or
         (ii) by forgery or alteration of a prescription or of any written order; or
         (iii) by the concealment of a material fact; or
         (iv) by the use of a false name or the giving of a false address
(B)
- furnish false or fraudulent information in or omit any information from, or willfully
  make a false statement in
- any prescription, order, report, record, or other document required under the Virginia
  Drug Control Act
(C)
- use in the course of manufacture or distribution of a controlled substance or marijuana
- license number which is fictitious, revoked, suspended, or issued to another person
(D)
- for the purpose of obtaining any controlled substance or marijuana
- falsely assume the title of, or represent himself to be, a manufacturer, wholesaler,
  pharmacist, physician, dentist, veterinarian or other authorized person
(E)
- make or utter any false or forged prescription or false or forged written order
(F)
- affix any false or forged label to a package or receptacle containing any controlled
  substance




                                            173
Crime involving moral turpitude
       Every conviction under this statute involves moral turpitude because all sections
punish offenses that involve fraud or deceit. See generally Jordan v. DeGeorge, 341 U.S.
223 (1951); see also Matter of Acosta, 14 I&N Dec. 338 (BIA 1973) (conviction
punishing false statements involve moral turpitude); Matter of Jimenez, 14 I&N Dec. 442
(BIA 1973) (forgery involves moral turpitude).

Aggravated felony
        (A) Obtaining controlled substances through fraud or deceit
        Controlled substances
        A conviction under this section of the statute is an aggravated felony under U.S.C.
§ 1101(a)(43)(B) because it is punishable as a felony under federal law. See Lopez v.
Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 843(a)(3) punishes obtaining possession of
a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. The
Virginia statute punishes obtaining or attempting to obtain possession by fraud, deceit,
misrepresentation, embezzlement, or subterfuge or by forgery of prescription or by
concealment of a material fact or by use of a false name or address. Although the
Virginia statute does not exactly parallel the language of 21 U.S.C. § 843(a)(3), all of the
Virginia offenses punished under this section are punishable under the federal statute
because they punish the obtaining of a controlled substance by fraud or deceit.
Therefore, a conviction under this section of the Virginia statute is an aggravated felony.
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore will be an aggravated felony as a fraud offense under 8 U.S.C. §
1101(a)(43)(M)(i) if the loss to the victim exceeds $10,000.

        (B) False statements in reports or applications
        Controlled substances
        A conviction under this section of the statute is an aggravated felony under U.S.C.
§ 1101(a)(43)(B) because it is punishable as a felony under federal law. See Lopez v.
Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 843(a)(4)(A) punishes the furnishing of
any false or fraudulent information in a report, application, record, or other
documentation required under the Controlled Substances Act. Because this section of the
Virginia statute is analogous to the federal statute, it is an aggravated felony.
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore is an aggravated felony as a fraud offense under 8 U.S.C. § 1101(a)(43)(M)(i) if
the loss to the victim exceeds $10,000.

       (C) Use of fictitious license number in the course of manufacturing or distributing
       a controlled substance
       Controlled substances
       A conviction under this section of the statute is an aggravated felony under U.S.C.
§ 1101(a)(43)(B) because it is punishable as a felony under federal law. See Lopez v.
Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 843(a)(2) punishes the use of a fictitious,
revoked, suspended, expired registration number or a registration number that belongs to



                                            174
someone else. The Virginia statute tracks the federal analogue almost exactly and
therefore, the offense is an aggravated felony.
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore will be an aggravated felony as a fraud offense under 8 U.S.C. §
1101(a)(43)(M)(i) if the loss to the victim exceeds $10,000.

        (D) Falsely assuming the title of a manufacturer for the purpose of obtaining a
        controlled substance
        Controlled substances
        A conviction under this section of the statute is probably an aggravated felony
under U.S.C. § 1101(a)(43)(B) because it is punishable as a felony under federal law.
See Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 843(a)(4)(A) punishes the
presentation of false identification where the person is receiving a listed chemical and the
person is required to present identification. Although the Virginia statute does not
exactly track the language of the federal statute, the offenses punished under the Virginia
statute are encompassed in those punishable under the federal statute. The Virginia
statute punishes a person for holding himself out to be a manufacturer, pharmacist, etc.
for the purpose of obtaining any controlled substance. The federal statute punishes a
defendant for presenting false identification in order to receive a listed chemical. That
which the defendant seeks to obtain is different in the two statutes, but the chemical and
controlled substance are substantially similar. Therefore, a conviction under this section
of the statute is probably an aggravated felony.
        Attempted controlled substances
        A conviction under this section of the statute is probably an attempted controlled
substance offense under 8 U.S.C. §§ 1101(a)(43)(B) and (U). The acts punished under
this section of the Virginia statute constitute an attempt to commit a felony punishable
under the federal drug statutes. See Lopez v. Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C.
§ 843(a)(3) punishes as a felony obtaining any controlled substance by misrepresentation,
fraud, forgery, deception, or subterfuge. The Virginia statute punishes a defendant for
obtaining a controlled substance by holding himself out to be a manufacturer, pharmacist.
The acts punishable under the Virginia statute amount to attempting to obtain a controlled
substance by deception, which is punishable under 21 U.S.C. § 843(a)(3). The
assumption of the role of pharmacist, etc., is a substantial step toward the commission of
the underlying offense and the statute contains the requisite intent to obtain a controlled
substance. See Matter of Onyido, 22 I&N Dec. 552 (BIA 1999). Therefore, a conviction
under this section of the Virginia statute is an aggravated felony.
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore is an aggravated felony as a fraud offense under 8 U.S.C. § 1101(a)(43)(M)(i) if
the loss to the victim exceeds $10,000.

       (E) Make or utter any false or forged prescription or order
       Controlled substances
       A conviction under this section of the statute is an aggravated felony under U.S.C.
§ 1101(a)(43)(B) because it is punishable as a felony under federal law. See Lopez v.



                                            175
Gonzales, 127 S. Ct. 625 (2006). 21 U.S.C. § 843(a)(4)(A) punishes the furnishing of
any false or fraudulent information in a report, application, record, or other
documentation required under the Controlled Substances Act. The prescription is a
required document under 21 U.S.C. § 830(a), as referenced in 21 U.S.C. § 843(a)(4)(A).
This section of the Virginia statute punishes the furnishing of false information on a
report required in relation to distribution of legal controlled substances. Therefore, the
offense is an aggravated felony.
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore is an aggravated felony as a fraud offense under 8 U.S.C. § 1101(a)(43)(M)(i) if
the loss to the victim exceeds $10,000.
        Forgery offense
        A conviction under this section of the statute is a forgery offense and therefore an
aggravated felony under 8 U.S.C. § 1101(a)(43)(R) if the sentence imposed is at least one
year.

        (F) Affixing false or forged label to package containing controlled substance
        Controlled substances
        A conviction under this section of the statute is probably an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B) because it is punishable as a felony under federal law.
See Lopez v. Gonzales, 127 S. Ct. 625 (2006). The acts punished under this section are
substantially similar to the acts punished under 21 U.S.C. § 843(a)(5), which punishes the
imprinting of a reproduced trademark on a container of any drug so as to render it a
counterfeit substance. Although the Virginia statute does not punish the exact same acts
because the Virginia statue punishes the switching of labels, rather than the switching of
labels so as to render a package a counterfeit substance, the elements are very similar.
Therefore, it is probably an aggravated felony.
        The offenses punished under this section of the Virginia statute are also similar to
the acts punished by 21 U.S.C. § 842(a)(4), which punishes the obliteration, removal, or
alteration of a symbol or label for a controlled substance container. Therefore, the
offense is probably an aggravated felony as it is very similar to 21 U.S.C. § 842(a)(4).
        Fraud offense
        A conviction under this section of the statute involves fraud or deceit and
therefore is an aggravated felony as a fraud offense under 8 U.S.C. § 1101(a)(43)(M)(i) if
the loss to the victim exceeds $10,000.
        Forgery offense
        A conviction under this section of the statute is a forgery offense and therefore an
aggravated felony under 8 U.S.C. § 1101(a)(43)(R) if the sentence imposed is at least one
year. Although the Virginia offense does not punish the actual making of a forged
instrument, it punishes an offense "relating to" forgery, which is included in the
aggravated felony definition.

Other immigration consequences
        A conviction under this statute will render a non-citizen deportable for a crime
relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B). Although the statute
does not actually punish the use or distribution of controlled substances, but rather



                                            176
obtaining through fraud and other like offenses, it is likely to come within this ground of
deportability because of the broad reading of "relating to" of 8 U.S.C. § 1227(a)(2)(B).
See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (holding that possession of paraphernalia
is a crime relating to a controlled substance because the crime is linked to drugs). The
only exception to the controlled substance ground of deportability is a simple possession
for one's own use of 30 grams or less of marijuana. Because the acts punished under this
statute do not involve possession, no conviction under this statute will fit within the
exception.

54.1-3466 Possession or distribution of controlled paraphernalia

Elements
- possess or distribute controlled paraphernalia
- paraphernalia mean a hypodermic syringe, needle or other instrument or implement or
  combination thereof adapted for the administration of controlled dangerous substances
  by hypodermic injections under circumstances which reasonably indicate an intention to
  use such controlled paraphernalia for purposes of illegally administering any controlled
  drug, or gelatin capsules, glassine envelopes or any other container suitable for the
  packaging of individual quantities of controlled drugs in sufficient quantity to and under
  circumstances which reasonably indicate an intention to use any such item for the illegal
  manufacture, distribution, or dispensing of any such controlled drug
- evidence of such circumstances shall include, but not be limited to, close proximity of
  any such controlled paraphernalia to any adulterants or equipment commonly used in
  the illegal manufacture and distribution of controlled drugs including, but not limited to,
  scales, sieves, strainers, measuring spoons, staples and staplers, or procaine
  hydrochloride, mannitol, lactose, quinine, or any controlled drug or any machine,
  equipment, instrument, implement, device or combination thereof which is adapted for
  the production of controlled drugs under circumstances which reasonably indicate an
  intention to use such item or combination thereof to produce, sell, or dispense any
  controlled drug in violation of the provisions of this chapter

Crime involving moral turpitude
        This offense is probably a crime involving moral turpitude because the statute has
an implied requirement that the defendant intend to use the paraphernalia to use a
controlled substance. The BIA has held that where a drug distribution or possession
offense involves a knowing requirement, it is a crime involving moral turpitude. See
Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). The BIA has also held that a statute
punishing the unlawful manufacture, sale, gift or distribution of drugs is a crime
involving moral turpitude. Matter of Y, 2 I&N Dec. 600 (BIA 1946). Although this
statute punishes the possession or distribution of drug paraphernalia, it is likely a
conviction under this statute is a crime involving moral turpitude. The BIA reasoned in
Matter of Khourn that drug distribution was morally turpitudinous because the defendant
intends to corrupt others. Following this reasoning, since the use of paraphernalia is to
take drugs, it is likely that this statute punishes acts which equally corrupt others or
oneself. Therefore, a conviction under this statute is probably a crime involving moral
turpitude.



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Aggravated felony
         Possession of paraphernalia
         Controlled substances
         A conviction under this section of the statute is not an aggravated felony under 8
U.S.C. § 1101(a)(43)(B) because it is not punishable in the federal statutes listed in 18
U.S.C. § 924(c). See Lopez v. Gonzales, 127 S. Ct. 625 (2006). The closest federal
analogue to this Virginia statute is 21 U.S.C. § 863(a), which punishes the sale or offer
for sale of drug paraphernalia. However, the Virginia statute punishes possession, not
sale, transportation, or importation of drug paraphernalia, all of which are the offenses
punished under 21 U.S.C. § 863(a). Therefore, a conviction for possession of
paraphernalia is not an aggravated felony because there is no federal analogue to the
Virginia statute in the federal drug statutes listed in 18 U.S.C. § 924(c).

        Distribution of paraphernalia
        Controlled substances
        A conviction under this section of the statute is not necessarily an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B) because not all offenses listed in the section are
punishable under the federal statutes listed in 18 U.S.C. § 924(c). See Lopez v. Gonzales,
127 S. Ct. 625 (2006). The closest federal analogue to this Virginia statute is 21 U.S.C. §
863(a), which punishes the sale or offer for sale of drug paraphernalia. However, the
Virginia statute punishes distribution, not sale, transportation, or importation of drug
paraphernalia, all of which are the offenses punished under 21 U.S.C. § 863(a). In
another statute punishing the sale of paraphernalia, the Virginia legislature indicates a
clear distinction between sale and distribution. See Va. Code Ann. §§ 18.2-265.3(B), (C)
(reducing the punishment for distribution of paraphernalia to minors