The Davis/Barrett test [historically, and to the extent it survives Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002)] applies both to the "illicit trafficking" prong I of the aggravated felony definition contained in 8 U.S.C. 1101(a)(43)(B), and the "drug trafficking crime" prong II of this definition: The Board's previous decisions, Matter of Davis, supra, and Matter of Barrett, supra, essentially established a two-pronged test ("Davis/Barrett test") for determining whether a state drug offense qualifies as an aggravated felony under section 101(a)(43) of the Act. Under the first prong of that test, a state drug offense is an aggravated felony if it is a felony under state law and has a sufficient nexus to unlawful trading or dealing in a controlled substance to be considered "illicit trafficking" as commonly defined. Matter of Davis, supra. In its motion, the Service does not contend that the respondent's Louisiana drug offense meets this prong. Under the second, alternate prong of the Davis/Barrett test, a state drug offense qualifies as a "drug trafficking crime," and thus as an aggravated felony (regardless of state classification as a felony or misdemeanor) if it is analogous to a felony under the federal statutes enumerated in 18 U.S.C. 924(c)(2) ("federal drug laws"). Matter of Davis, supra; Matter of Barrett, supra. In other words, as discussed below, a state drug offense qualifies as a "drug trafficking crime" if it is punishable as a felony under the federal drug laws."   See Matter of LG.

jurisdiction: 
BIA

 

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