Aggravated Felonies

(B)  Commercial Element Required.  While the contraband is explicitly defined by reference to federal statutes, the term “illicit trafficking” is not.  Therefore a generic definition of “illicit trafficking” must be found.  Counsel may wish to draw an analogy to illicit trafficking in controlled substances forbidden under INA § 101(1)(43)(B).  See § 5.37, infra.  In the drug trafficking context, decisions interpreting the common-sense meaning of “trafficking” in controlled substances cases have generally found that trafficking relates to commercial transactions.[219]  Therefore, if the offense of conviction involves non-commercial distribution of the listed destructive devices, the conviction arguably does not constitute an aggravated felony.

[219] See Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (trafficking requires a commercial element, and does not include gratuitous distribution).