## In the 

# United States Court of Appeals For the Seventh Circuit

____________

No. 07-1831

U MANG D ESAI , Petitioner,

v.

M ICHAEL B. M UKASEY , Attorney General of the United States, Respondent.

____________ Petition to Review an Order of the

Board of Immigration Appeals. No. A44-828-446

.

____________ A RGUED N OVEMBER 30, 2007—D ECIDED M ARCH 28, 2008

____________

Before E ASTERBROOK , Chief Judge , and F LAUM and W ILLIAMS , Circuit Judges

. F LAUM , 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 inan affidavit as part of an unsuccessful criminal appeal. trolled substances. Because we find that there is a sufficient connection between these L ook-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 cont ractor at the U.S. General Services Administration inits informat ion 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 beenconvicted 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, moreNo. 07-1831 3
commonly referred to as “shroom s.” 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 he r 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 Substa nce 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 be fore an immigration judge on January 25, 2005. Based on the charge and his plea to the Look-Alike Substance violatio n, the Immigration Judge (“IJ”) ruled that Desai’s conviction was a violation of a law “relating to a controlled substa nce” 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 ul timately 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. The4 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 cl assified as a violation of a state law relating to a contro lled substance. What is key in this case is the language of § 1182(a)(2)(A)(i)(II), which
states: Except as provided in clau se (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 countr y 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 theunderlying offense must be one that is related to a controlled substance as define d 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 drugschedules 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.” W EBSTER ’ S II N EW R IVERSIDE U NIVERSITY D ICTIONARY 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 associatio n with or connection with.’ ” Id. at 384 (quoting B LACK ’ S L AW D ICTIONARY 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 I LL

. C OMP

. S TAT . 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 lackthereof, taste, consistency, or any other identifying phys ical 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 controlled6 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 substanc e. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal co ntrolled substance, in the sense that violating it in the way that Desai did—by distributing something that would lead on e 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 controlle d substance that justifies making the distribution of th e Look-Alike illegal. To put itmore bluntly, the idea of distributing a “Psilocybin LookAlike” would not even exis t 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 decisionNo. 07-1831 7

2 Desai attempts to bolster his point here by examining the statute’s syntax. He cl aims that the phrase “relating to” modifies the word “law,” and not “contro lled 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 im portant is not what “r elating 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 fo r immigration purposes. He contends that this hypothet ical-federal-felony approach should be applied to removability under § 1182(a)(2)(A)(i)(II) because th e 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 tr afficking 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 is8 No. 07-1831

3 In fact, the vast majority of states have criminalized the distribution of L ook-Alike Substances. See Michael D. Blanchard & Gabriel J. Chin, Identifying the Enemy in the War on Drugs , 47 A M

. U. L. R EV . 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 ha ve 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 “contro lled substance,” its immediate antecedent. SeeNo. 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 de termine 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 St ates for violating the law.No. 07-1831 9

III. Conclusion For the foregoing reasons, the petition for review is D ENIED

.

USCA-02-C-0072—3-28-08