Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes.
You can access the opinion here.
The analysis is straightforward: (1) The NY statute prohibits the sale of a “controlled substance.” That element is indivisible under Mathis v. United States, 136 S. Ct. 2243 (2016). (2) The NY controlled substance schedule is categorically broader than the federal schedule because the former includes at least one substance (human chorionic gonadotropin, HCG) that the latter does not.
If your client has a prior conviction under 220.31, you should be arguing that 220.31 is not a controlled substance offense under the Guidelines (for example, under the felon-in-possession or career-offender guidelines), or any other enhancement provision. Although not controlling, Harbin is extremely helpful on …