In the related area of the controlled substances ground of deportation, the BIA has held that “facilitation” of sale constitutes a deportable conviction of violating a law relating to a controlled substance.[398]  Two courts of appeal agree in the illegal re-entry sentencing context, which may be distinguishable from the immigration context.[399]  On the other hand, a court of appeals may conclude that since the aggravated felony ground of deportation specifically states that “attempt” and “conviction” are included as aggravated felonies, but does not mention “facilitation,”[400] the latter offense is not included, and does not trigger deportation as a firearms conviction.[401]  See § 3.48(B), supra.  See also Appendix F, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include facilitation, thus giving rise to the argument that it meant to exclude facilitation convictions.

[398] Matter of Del Risco, 20 I. & N. Dec. 109 (BIA 1989) (conviction of facilitation of the unlawful sale of cocaine renders a noncitizen deportable on account of a conviction for violating a law relating to a controlled substance).

[399] United States v. Orihuela, 320 F.3d 1302 (11th Cir. Feb. 10, 2003) (conviction of telephone facilitation in violation of 21 U.S.C. § 843(b) is a “drug trafficking offense” within the meaning of U.S.S.G. § 2 L1.2(b)(1)(A), for purposes of imposing a 16-level enhancement of an illegal re-entry sentence, since it qualifies as a controlled substance offense under U.S.S.G. § 4B1.2(b) as in effect aiding and abetting a qualifying offense); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term  “include,” the list of offenses in the application note is merely illustrative, it observed that the application note “may not be an exhaustive list” and proceeded to decide “whether ... criminal facilitation should be included in that list” and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense).

[400] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[401] See United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001), citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense did not constitute a drug-related conviction).

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE
Freire v. Holder, ___ F.3d ___ (2d Cir. May 27, 2011) (BIA has authority to grant request for continuance to allow adjustment of status before USCIS).