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.

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

Third Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION WITH INTENT TO DELIVER
Garcia v. Attorney General, ___ F.3d ___, 2006 WL 2529471 (3d Cir. Sept. 5, 2006) (Pennsylvania conviction of two counts of manufacturing, delivering, or possessing a controlled substance with the intent to deliver, under 35 Pa. Stat. Ann. 780-113(a)(30), constitutes an "aggravated felony" for immigration purposes; even though statute was phrased in disjunctive, record of conviction including complaint indicated defendant had sold, delivered, and possessed controlled substances with intent to deliver, which sufficiently established trafficking element to constitute drug trafficking aggravated felony under "illicit trafficking" route of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)), distinguishing Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).

Fifth Circuit

AGGRAVATED FELONY - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), rejecting argument that because Texas law defines "delivery" as encapsulating "offering to sell," it is broader than the definition of "delivery" in the federal statute, which does not include offers to sell and because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under Health & Safety Code 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal), following United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) (Texas conviction for possession with intent to deliver a controlled substance, under Texas Health and Safety Code 481.112(a), constitutes a "controlled substance offense" for the purposes of a U.S.S.G. 2K2.1(a)(4)(A) sentence enhancement, because this offense is indistinguishable from "possession with intent to distribute," one of the offenses listed in the USSG definition of a "controlled substance offense").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF TELEPHONE TO FACILITATE
United States v. Pillado-Chapparo, 543 F.3d 202 (5th Cir. Sept. 17, 2008) (federal conviction for use of a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. 843(b), was a drug trafficking offense for illegal re-entry purposes).

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Martinez-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 21, 2006) (California conviction of possession for sale of marijuana, in violation of Health & Safety Code 11359, constituted a drug trafficking offense for enhancing illegal reentry sentence, since full range of conduct proscribed by state statute fell within federal definition). http://caselaw.lp.findlaw.com/data2/circs/9th/0550719p.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Morales-Perez, ___ F.3d ___ (9th Cir. Nov. 13, 2006) (California conviction of purchasing cocaine base with intent to sell, in violation of Health & Safety Code 11351.5(a), categorically constituted a drug trafficking offense under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry sentencing purposes, since the full range of conduct proscribed by the California statute fell within the definition of the federal offense of attempted possession with intent to distribute under 21 U.S.C. 841(a)(1) and 846, an offense explicitly included in the definition of "drug trafficking offense" contained under U.S.S.G. 2L1.2 cmt. n.5). http://caselaw.lp.findlaw.com/data2/circs/9th/0510115p.pdf

Tenth Circuit

AGGRAVATED FELONY - DELIVERY OF CONTROLLED SUBSTANCE
United States v. Chavez-Diaz, __ F.3d __, 2006 WL 1000811 (10th Cir. Apr. 18, 2006) (Wyoming conviction for delivery of a non-narcotic controlled substance constituted an aggravated felony controlled substance offense for illegal re-entry sentencing purposes).