In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1831

UMANG DESAI,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney 

General of the United States,

Respondent.

____________

Petition to Review an Order of the 

Board of Immigration Appeals.

No. A44-828-446.

____________

ARGUED NOVEMBER 30, 2007—DECIDED MARCH 28, 2008

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. Umang Desai was charged as a

removable alien by the Department of Homeland Security

(“DHS”) because he was convicted of violating a law

relating to a federal controlled substance. The offense at

issue is an Illinois law that punishes individuals for

distributing substances that substantially resemble con-
2 No. 07-1831

1 The government has not conceded to the veracity of these

facts, which Desai submitted in an affidavit as part of an

unsuccessful criminal appeal.

trolled substances. Because we find that there is a sufficient

connection between these Look-Alike Substances and

actual controlled substances, we deny Desai’s petition for

review.

I. Background

Umang Desai is a native and citizen of the United

Kingdom. He entered the United States as a lawful permanent resident on June 8, 1995, at the age of fourteen. He is

unmarried and worked for a contractor at the U.S. General

Services Administration in its information technology

division, where he had been for six years. Returning from

a trip overseas on June 23, 2004, he arrived at Boston

International Airport and sought admission as a lawful

permanent resident. Desai was not admitted, and DHS

placed him in removal proceedings. On November 16,

2004, DHS charged him as a removable alien pursuant to 8

U.S.C. § 1182(a)(2)(A)(i)(II) based on a previous conviction

for violating a law relating to a controlled substance. DHS

also charged that he had been convicted of a crime involving moral turpitude. 

The facts surrounding Desai’s underlying offense are not

at issue in this matter, but for completeness, we recite them

here.1

 One night in the autumn of 2001, Desai met a woman

at a nightclub. What Desai did not know was that she

happened to be an undercover police officer. Earlier that

day, someone gave Desai chocolates which were purported

to contain the hallucinogenic drug Psilocybin, more
No. 07-1831 3

commonly referred to as “shrooms.” Back at the nightclub,

Desai, who was taken with this woman, offered her the

chocolates for free, but she paid him 20 dollars for them

and asked if he could get her more. Desai stated that he

was not involved in drug trafficking, but gave her his

number anyway in the hopes of pursuing a romantic

relationship. Some time later, the officer called Desai

asking for drugs, but he told her that he could not help her

out. He did, however, direct her to an individual named

Wayne who could perhaps get her drugs, though he never

arranged a meeting between the two.

On March 6, 2002, Desai was charged with Unlawful

Delivery of a Look-Alike Substance in violation of Illinois

law, 720 ILCS 570/404(b). He pled guilty to this class 3

felony and received probation. Two and a half years later,

as we detailed above, DHS charged him with removability.

He subsequently appeared before an immigration judge on

January 25, 2005. Based on the charge and his plea to the

Look-Alike Substance violation, the Immigration Judge

(“IJ”) ruled that Desai’s conviction was a violation of a law

“relating to a controlled substance” and that it was a crime

involving moral turpitude. Instead of immediately having

him removed, the IJ granted Desai a continuance to file a

motion to vacate his criminal conviction with the Illinois

state court. The Illinois court ultimately denied this motion,

and Desai again appeared before the IJ who issued his

decision. Based on his findings, the IJ determined that

Desai was removable as charged.

Desai then appealed this decision to the Board of Immigration Appeals (“BIA”), arguing that his conviction did

not concern controlled substances as defined by the federal

Controlled Substances Act (“CSA”), and that his conviction

did not constitute a crime involving moral turpitude. The
4 No. 07-1831

BIA issued its decision on March 20, 2007. It concluded that

Desai’s underlying offense did not qualify as a crime

involving moral turpitude, but that it was an infraction of

state law that related to a controlled substance as set forth

in § 1182(a)(2)(A)(i)(II), thereby classifying him as a

removable alien.

II. Discussion

Desai now raises the same issue before this Court:

whether his conviction for knowingly distributing a LookAlike Substance was properly classified as a violation of a

state law relating to a controlled substance. What is key in

this case is the language of § 1182(a)(2)(A)(i)(II), which

states:

Except as provided in clause (ii), any alien convicted

of, or who admits having committed, or who admits

committing acts which constitute the essential elements

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 [the

Controlled Substances Act]), is inadmissible.

Desai submits that the text of this statute indicates that the

underlying offense must be one that is related to a controlled substance as defined by the federal Controlled

Substances Act. Although the CSA defines Psilocybin as a

controlled substance, Desai did not actually distribute

Psilocybin, but rather a substance that was a Psilocybin

look-alike. Nothing in the drug schedules contained in the

CSA classifies a look-alike as a controlled substance, so

Desai’s crime would not be punishable under the CSA.
No. 07-1831 5

Hence, Desai argues, the BIA erred in its determination

regarding his removal.

What is missing from Desai’s textual argument is that he

fails to give effect to the phrase “relating to” in the statute.

As noted above, § 1182(a)(2)(A)(i)(II) punishes an individual for violating “any law or regulation of a state, the

United States, or a foreign country relating to controlled

substances . . . .” The BIA correctly determined that the

phrase “relating to” is intended to have a broadening

effect. The Immigration and Nationality Act does not

define the term, and so the BIA began its analysis by

looking to the dictionary for guidance. It found that “items

have a ‘relation’ when there exists a ‘logical and natural

association’ between them.” WEBSTER’S II NEW RIVERSIDE

UNIVERSITY DICTIONARY 992 (1994). Additionally, the

Supreme Court in Morales v. Trans World Airlines, Inc., 504

U.S. 374 (1992), looked to the dictionary to determine that

the ordinary meaning of “relating” is “a broad one—’to

stand in relation; to have bearing of concern; to pertain;

refer, to bring in association with or connection with.’ ” Id.

at 384 (quoting BLACK’S LAW DICTIONARY 1158 (5th ed.

1979)). 

Given this understanding of what the phrase “relating

to” means, we must apply it to the Illinois Controlled

Substances Act, 720 ILL. COMP. STAT. 570/102(y), which

defines a “Look-Alike Substance” as follows:

a substance, other than a controlled substance which

(1) by overall dosage unit appearance, including shape,

color, size, markings or lack thereof, taste, consistency,

or any other identifying physical characteristics of the

substance, would lead a reasonable person to believe

that the substance is a controlled substance, or (2) is

expressly or impliedly represented to be a controlled
6 No. 07-1831

substance or is distributed under circumstances which

would lead a reasonable person to believe that the

substance is a controlled substance. 

This state law is focused on punishing those who distribute

substances that would lead a reasonable person to believe

it to be a controlled substance. Psilocybin is a controlled

substance under the federal CSA. Thus, this is a state law

that is related to a federal controlled substance, in the sense

that violating it in the way that Desai did—by distributing

something that would lead one to believe it contained

Psilocybin—brings it into association with a federal

controlled substance. We have recently held that possessing “a pipe for smoking marijuana is a crime within the

scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia

relates to the drug with which it is used.” Escobar Barraza v.

Mukasey, ___ F.3d ___, No. 07-2502, slip op. at 6 (7th Cir.

Mar. 13, 2008) (emphasis added). It is the fact that there is

a relation between the pipe and the controlled substance

that justifies making the possession of the pipe illegal. So

too here, it is the fact that there is a relation between the

Look-Alike and the controlled substance that justifies

making the distribution of the Look-Alike illegal. To put it

more bluntly, the idea of distributing a “Psilocybin LookAlike” would not even exist as a legal (or linguistic)

concept without its connection to, or relationship with,

Psilocybin. The simulacrum and the thing itself are always

connected.

In addition to his textual argument, Desai asserts that

from a policy perspective, this Court should look only to

federal criminal law—not state criminal laws—when

classifying removable and non-removable offenses. He

directs us to our decision in Gonzales-Gomez v. Achim, 441

F.3d 532 (7th Cir. 2006), and the Supreme Court’s decision
No. 07-1831 7

2 Desai attempts to bolster his point here by examining the

statute’s syntax. He claims that the phrase “relating to” modifies

the word “law,” and not “controlled substance.” It is unclear

how this assertion leads to his conclusion, because even if

“relating to” modifies “law,” the statute still reads as referring

to the kind of state law that deals with federally controlled

substances. What is important is not what “relating to” modifies,

but what it means. 

in Lopez v. Gonzales, 127 S. Ct. 625 (2006), both of which

held that Congress intended the courts to utilize federal

law when ascertaining whether a state offense constituted

an aggravated felony for immigration purposes. He

contends that this hypothetical-federal-felony approach

should be applied to removability under

§ 1182(a)(2)(A)(i)(II) because the policy implications are the

same: maintaining uniform application of immigration

laws across the country.2

 On this view, state substancedistribution violations that are not mentioned in the federal

CSA should not form the basis for removal under

§ 1182(a)(2)(A)(i)(II).

But our precedent trips up Desai’s argument. In Escobar,

we held that the hypothetical-federal-felony approach does

not apply to § 1182(a)(2)(A)(i)(II). Escobar, ___ F.3d ___, No.

07-2502, slip op. at 2-3. A different result was reached in

Achim and Lopez because a different statute was at issue.

There, 8 U.S.C. § 1101(a)(43)(B) defined an “aggravated

felony” to include “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in

section 924(c) of title 18).” The Supreme Court understood

the parenthetical phrase to modify the remaining words of

the statute in such a way that only federal law governed

the meaning of the term “aggravated felony.” What is
8 No. 07-1831

3 In fact, the vast majority of states have criminalized the

distribution of Look-Alike Substances. See Michael D. Blanchard

& Gabriel J. Chin, Identifying the Enemy in the War on Drugs, 47

AM. U. L. REV. 557, 569 (1998). 

different in the instant case is that there is explicit reference

to state law in the text of the statute, and a broadening term

that bridges the state law crimes with federal definitions of

what counts as a controlled substance. If Congress wanted

a one-to-one correspondence between the state laws and

the federal CSA, it would have used a word like “involving” instead of “relating to,” or it could have written the

statute the way that it wrote § 1101(a)(43)(B). 

There is a similar parenthetical phrase in

§ 1182(a)(2)(A)(i)(II)—“as defined in section 802 of title 21.”

As we held recently in Escobar, this parenthetical can only

be read to modify “controlled substance,” its immediate

antecedent. See No. 07-2502, slip op. at 2-3. So our task is

simply to examine whether the state law is one relating to

a federal controlled substance. This of course does not give

states free rein to define their criminal laws in a manner

that would allow them to effectively usurp the federal

government’s authority to determine who is permitted to

enter and live in this country. If a state decides to outlaw

the distribution of jelly beans, then it would have no effect

on one’s immigration status to deal jelly beans, because it

is not related to a controlled substance listed in the federal

CSA. But if a state, like Illinois, decides to outlaw the

distribution of a substance that is purported to be and

would lead a reasonable person to believe it to be

“shrooms,”3

 we have explained why there is enough of a

relation to the federal controlled substance to warrant

removal from the United States for violating the law.
No. 07-1831 9

III. Conclusion

For the foregoing reasons, the petition for review is

DENIED. 

USCA-02-C-0072—3-28-08