Aggravated Felonies

The INA defines as an aggravated felony a conviction of:

(B) illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) . . . .[227]

This definition has been divided into two separate tests.  See § 5.38, infra.  If the conviction meets either test, it is a drug trafficking aggravated felony.  Whether the offense of simple possession and certain other minor offenses trigger removal as aggravated felonies, however, has been the focus of a long-standing debate among the courts.  See § 5.40, infra.  Whether a state’s definition of controlled substance is equivalent to the federal definition, and what happens when the two definitions are not equivalent, is also an important issue.  See § 5.42, infra.

Other key issues that arise in the context of aggravated felony drug offenses include the definition of “felony” for immigration purposes,[228] immigration effects of expungements of convictions,[229] and whether certain non-substantive offenses (e.g., solicitation) should be considered aggravated felonies.[230]

[227] INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C).  While the section was created as part of INA § 101(a)(43) by the 1988 ADAA, it was newly designated as subsection “C” under the 1994 INTCA.

[228] See § 3.57, supra.

[229] See § § 6.11-6.14, infra.

[230] See § § 3.48-3.54, supra.