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Case Name:

Case Number:

Date Filed:






Petitioner,                                           No. 97-70595

v.                                                    INS. No.
SERVICE,                                              OPINION

Petition to Review a Decision of the
Immigration and Naturalization Service

Argued and Submitted
May 4, 2000--Pasadena, California

Filed August 3, 2000

Before: J. Clifford Wallace, Stephen S. Trott, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Trott



James A. Stanton, Stanton, Clay, Tom, Chapman & Crump-
ton, Honolulu, Hawaii, for the petitioner.


Christine A. Bither (Argued), Department of Justice, Wash-
ington, D.C., and Elizabeth A. Welsh (On the Briefs), Senior
Litigation Counsel, Office of Immigration Litigation, Depart-
ment of Justice, Washington, D.C., for the respondent.



TROTT, Circuit Judge:

Minh Duc Luu-Le ("Luu-Le") petitions for review of the
Board of Immigration Appeals' ("BIA") decision affirming an
Immigration Judge's ("IJ") determination that he is deportable
for a conviction "relating to a controlled substance" and ineli-
gible for discretionary relief from deportation pursuant to
Immigration and Nationality Act ("INA") section 212(c).
Luu-Le argues that his misdemeanor conviction for "posses-
sion of drug paraphernalia" is not a violation of a law "relat-
ing to a controlled substance," and that his inability to apply
for section 212(c) relief is both wrong as a matter of law and
a violation of due process and fundamental fairness. The
Immigration and Naturalization Service ("INS") argues that
we lack jurisdiction to hear this case pursuant to the transi-
tional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), specifically section
309(c)(4)(G). Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-
626 to -627 (Sept. 30, 1996), as amended by Act of Oct. 11,
1996, Pub.L. No. 104-302, 110 Stat. 3656. We conclude that
we have jurisdiction to determine our jurisdiction, but that
Luu-Le's conviction is indeed one "relating to a controlled
substance." Thus, section 309(c)(4)(G) precludes us from
reviewing the BIA's determination that Luu-Le is ineligible
for 212(c) relief, and we therefore DISMISS Luu-Le's peti-


Luu-Le is an alien with lawful permanent resident status.
Luu-Le's deportation proceedings began, at the latest, on Feb-


ruary 1, 1993, but the BIA did not issue its final order dis-
missing his appeal from the IJ's decision until April 30, 1997.
Luu-Le's case is therefore governed by IIRIRA's transitional
rules. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.

The INS first contacted Luu-Le in 1992 after learning that
he had been convicted for possession of drug paraphernalia
under section 13-3415 of the Arizona Criminal Code. Section
13-3415's plain language criminalizes the possession of drug
paraphernalia only if that possession is accompanied by the
use, or the intended use, of the paraphernalia for a drug-
related purpose. Ariz. Rev. Stat S 13-3415(A) (2000).

The INS subsequently charged Luu-Le as being deportable
under INA section 241(a)(2)(B)(i), which classifies as deport-

      [a]ny alien who at any time after admission has been
      convicted of a violation of (or a conspiracy or
      attempt to violate) any law or regulation of a State,
      the United States, or a foreign country relating to a
      controlled substance (as defined in section 802 of
      Title 21), other than a single offense involving pos-
      session for one's own use of 30 grams or less of

8 U.S.C. S 1251(a)(2)(B)(i) (now recodified as 8 U.S.C.
S 1227(a)(2)(B)(i) (1999)). Applying INA section 241(a)(2)
(B)(i), the IJ determined that Luu-Le was deportable because
of his state law conviction for possession of drug parapherna-
lia. The IJ also concluded that Luu-Le was not eligible for a
discretionary waiver of deportation under INA section 212(c)
because section 440(d) of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") had amended section
212(c) specifically to make ineligible for such relief "an[y]
alien who is deportable by reason of having committed any
criminal offense covered in section 241(a)(2)(A)(iii), (B), (C),


or (D)." 8 U.S.C. S 1182(c). The BIA dismissed Luu-Le's
appeal from the IJ's decision, affirming that Luu-Le's convic-
tion was covered by INA section 241(a)(2)(B)(i) and that he
was ineligible for INA section 212(c) relief because of the
effect of AEDPA section 440(d).

Luu-Le raises two issues in his petition for review of the
BIA decision: (1) whether his conviction is covered by INA
section 241(a)(2)(B)(i), and (2) whether he should have been
allowed to apply for INA section 212(c) discretionary relief
from deportation. The latter of the two issues he frames not
only in terms of legal error, but also as a violation of due pro-
cess and fundamental fairness. The INS counters Luu-Le's
arguments by pointing the court to IIRIRA section 309(c)
(4)(G), a transitional rule which removes jurisdiction from
this court for any appeal from a final order of deportation "in
the case of an alien who is . . . deportable by reason of having
committed a criminal offense covered in . . . section 241(a)(2)
(A)(iii), (B), (C), or (D) of the [INA] (as in effect as of the
date of [IIRIRA's enactment])." IIRIRAS 309(c)(4)(G).


A. Standard of Review

We determine our own jurisdiction de novo. Milne v. Hill-
blom, 165 F.3d 733, 735 (9th Cir. 1999). Whether a particular
conviction is a deportable offense is a question of law we
review de novo. Coronado-Durazo v. INS, 123 F.3d 1322,
1324 (9th Cir. 1997). In the course of our de novo review,
where we are interpreting a statute that is silent or ambiguous
regarding an issue, we grant a degree of deference to the inter-
pretation of an administrative agency charged with imple-
menting the statute or provision in question when the
agency's interpretation is a "permissible construction of the
statute." See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984); Coronado-
Durazo, 123 F.3d at 1324.


B. Analysis

[1] IIRIRA section 309(c)(4)(G) removes this court's juris-
diction to consider Luu-Le's petition if he is deportable by
reason of having committed a criminal offense covered by
INA section 241(a)(2)(B)(i). We have jurisdiction to consider
this jurisdictional question. See Aragon-Ayon v. INS, 206 F.3d
847, 849 (9th Cir. 2000). Because one of the issues raised by
Luu-Le's petition is whether his conviction for possession of
drug paraphernalia under section 13-3415 of the Arizona
Criminal Code is a conviction under a law "relating to a con-
trolled substance," and thus whether he is deportable at all,
"the jurisdictional question and the merits collapse into one"
in this regard. Ye v. INS, 2000 WL 732911, *2 (9th Cir. June
9, 2000).

The "jurisdictional fact" question we must answer is
whether Luu-Le's conviction for possession of drug parapher-
nalia under section 13-3415 of the Arizona Criminal Code is
a conviction for a violation of a "law . . . relating to a con-
trolled substance." See INA S 241(a)(2)(B)(i). Whether sec-
tion 13-3415, or any other statute criminalizing possession of
drug paraphernalia, is a "law . . . relating to a controlled sub-
stance" is a question of first impression for the federal courts.
To answer this question, we must look to the language of the
law itself. We believe that a plain reading of both INA section
241(a)(2)(B)(i) and section 13-3415 of the Arizona Criminal
Code demonstrates that Luu-Le's conviction for possession of
drug paraphernalia under section 13-3415 falls within the
scope of section 241(a)(2)(B)(i). Thus, IIRIRA section 309(c)
(4)(G) removes our jurisdiction to consider Luu-Le's petition
for review.1
1 Simply because Luu-Le has framed his argument in the constitutional
terms of "due process" and "fundamental fairness" in this direct appeal
does not mean that we have a basis for jurisdiction independent of section
309(c)(4)(G)'s removal of such jurisdiction. See Alfaro-Reyes v. INS, _______
F.3d _______, No. 97-70443, (9th Cir. 2000); cf. Flores-Miramontes v. INS,
2000 WL 558024, *2-3 (9th Cir. May 9, 2000) (reaching the same conclu-
sion with regards to the jurisdiction-stripping effect of 8 U.S.C. S 1252(a)


Section 13-3415 is titled "Possession, Manufacture, Deliv-
ery and Advertisement of Drug Paraphernalia" and makes it

      unlawful for any person to use, or to possess with
      intent to use, drug paraphernalia to plant, propagate,
      cultivate, grow, harvest, manufacture, compound,
      convert, produce, process, prepare, test, analyze,
      pack, repack, store, contain, conceal, inject, ingest,
      inhale or otherwise introduce into the human body a
      drug in violation of this chapter.

Ariz. Rev. Stat. S 13-3415(A). "Drug paraphernalia" is

      all equipment, products and materials of any kind
      which are used, intended for use or designed for use
      in planting, propagating, cultivating, growing, har-
      vesting, manufacturing, compounding, converting,
      producing, processing, preparing, testing, analyzing,
      packaging, repackaging, storing, containing, con-
      cealing, injecting, ingesting, inhaling or otherwise
      introducing into the human body a drug in violation
      of this chapter.

Id. S 13-3415(F)(2). As used in section 13-3415, "drug"
means "any narcotic drug, dangerous drug, marijuana or pey-
ote." Id. S 13-3415(F)(1). A "controlled substance," as
defined in INA section 241(a)(2)(B)(i), is

      a drug or other substance, or immediate precursor,
      included in schedule I, II, III, IV, or V of part B of
      this subchapter. The term does not include distilled
      spirits, wine, malt beverages, or tobacco, as those
      terms are defined or used in subtitle E of the Internal
      Revenue Code of 1986.

21 U.S.C. S 802(6) (1999). The schedules mentioned in 21
U.S.C. S 802(6) and, through incorporation, INA section
241(a)(2)(B)(i), include marijuana and peyote and a full pano-


ply of other narcotic and dangerous drugs, including heroin,
lysergic acid diethylamide (LSD), and cocaine. See 21 U.S.C.
S 812(c).

[2] Although the definition of "drug" as used in section 13-
3415 does not map perfectly the definition of "controlled sub-
stance" as used in INA section 241(a)(2)(B)(i), in our opinion
section 13-3415 is clearly a law "relating to " a controlled sub-
stance. Section 13-3415 is plainly intended to criminalize
behavior involving the production or use of drugs -- at least
some of which are also covered by the federal schedules of
controlled substances as printed in 21 U.S.C. S 812(c) --
through focusing on "drug paraphernalia." The statute makes
abundantly clear that an object is not drug paraphernalia
unless it is in some way linked to drugs. In addition to subsec-
tions 13-3415(A) and 13-3415(F)(2), which respectively
define the offense and the term "drug paraphernalia," subsec-
tion 13-3415(E) lists fourteen factors that a court "shall con-
sider, in addition to all other logically relevant factors," in
determining whether an object is drug paraphernalia. These
factors include statements by the owner or person in control
of the object, the proximity of the object to drugs, the exis-
tence of any drug residue on the object, direct or circumstan-
tial evidence of the owner or user's intent and knowledge, and
the existence and scope of legitimate uses for the object in the
community. See Ariz. Rev. Stat. S 13-3415(E)(1), (4)-(6),
(13). Thus, we reject Luu-Le's suggestion that section 13-
3415 does not necessarily relate to a controlled substance
because it criminalizes the non-drug-related use of an object
potentially characterized as "drug paraphernalia, " such as a
spoon or balloon. The language of subsections 13-3415(A),
(E), and (F)(2) refutes this contention.

After taking into consideration the language of section 13-
3415, it is important to note that we have construed the "relat-
ing to" language broadly in the past. See, e.g., Johnson v. INS,
971 F.2d 340, 342-43 (9th Cir. 1992) (deportable for guilty
plea to information charging alien with "travel[ing] in inter-


state commerce . . . with the intention of distributing the pro-
ceeds derived from the unlawful distribution of narcotics and
controlled substances. . . ."); Londono-Gomez v. INS, 699
F.2d 475, 476-77 (9th Cir. 1983) (deportable for conviction of
aiding and abetting the distribution of cocaine because the law
"makes punishable as a principal one who aids or abets
another in the commission of a substantive offense"); see also
Forstner v. INS, 579 F.2d 506, 507 (9th Cir. 1978) (noting
that "relating to" language should be given broad scope).

We recognize that the phrase "relating to," although
broadly worded, does have some limits. However, we believe
the cases that held that specific convictions fell outside the
boundaries of "relating to" are distinguishable from Luu-Le's
case. We have limited the scope of the "relating to" language
where to read it broadly would render meaningless other
words in the statutory language. See, e.g., Leyva-Licea v. INS,
187 F.3d 1147, 1149-50 (9th Cir. 1999) (solicitation to pos-
sess marijuana for sale not a crime relating to controlled sub-
stance where conspiracy and attempt are the only two
inchoate crimes listed in INA section 241(a)(2)(B)(i));
Coronado-Durazo, 123 F.3d at 1325-26 (same rationale as
Leyva-Licea, but with regards to solicitation to possess
cocaine). Other courts have found convictions to fall outside
the bounds of the "relating to" language where the conviction
itself had nothing to do with controlled substances, although
the underlying conduct clearly did. See Castaneda de Esper
v. INS, 557 F.2d 79, 84 (6th Cir. 1977) (misprision of felony
not deportable conviction because "[p]etitioner pled guilty to
misprision of felony, not to commission of the underlying
conspiracy [to possess heroin that] she concealed"); In re
Carrillo, 16 I. & N. Dec. 625, 626-27 (BIA 1978) (conviction
for possession of a firearm during commission of felony not
deportable offense "notwithstanding the fact that the underly-
ing felony may, in a particular case, be a narcotic-related
offense"); In re Velasco, 16 I. & N. Dec. 281 (BIA 1977)
(same as Castaneda, except felony underlying misprision was


"possession of marihuana with intent to distribute").2 Luu-
Le's case does not involve an inchoate crime, and he was con-
victed of violating a law that, by its own terms, relates to con-
trolled substances.

[3] When the breadth of the phrase "relating to" is taken
into consideration, there can be no other conclusion than that
section 13-3415 is a law relating to a controlled substance,
and that Luu-Le was convicted under that law. Because Luu-
Le was convicted of violating a law that relates to controlled
substances, IIRIRA section 309(c)(4)(G) removes our juris-
diction to consider his petition for review and his argument
that he is eligible for section 212(c) relief from deportation
pursuant to our decision in Magana-Pizano v. INS , 200 F.3d
603, 610-11 (9th Cir. 1999). Section 309(c)(4)(G) removes
our jurisdiction entirely; thus, we cannot address Luu Le's
due process and fundamental fairness argument. See Alfaro-
Reyes v. INS, _______ F.3d _______, No. 97-70443 (9th Cir. 2000).
The petition for review is DISMISSED.

2 Londono-Gomez, Forstner, Castaneda and Carrillo involved statutory
language in effect prior to current section 241(a)(2)(B)(i). See Londono-
Gomez, 699 F.2d at 476 & n.1; Forstner, 579 F.2d at 507; Castaneda, 557
F.2d at 80; Carrillo, 16 I. & N. Dec. at 627. This predecessor language
made deportable any alien who "has been convicted of a violation of, or
a conspiracy to violate, any law or regulation relating to the illicit posses-
sion of or traffic in narcotic drugs or marijuana. " INA S 241(a)(11), 8
U.S.C. S 1251(a)(11) (transferred to 8 U.S.C.S 1227 by Pub.L. 104-208,
110 Stat. 3009-598, S 305(a)(2) (Sept. 30, 1996)).