Aggravated Felonies

Both parts of the illicit trafficking aggravated felony definition require that the conviction be a felony.  In Matter of Davis, the BIA stated:

Thus, we conclude that a drug-related aggravated felony includes any state, federal or qualified foreign felony conviction involving [actual unlawful trafficking] . . . .  Conversely, we would not conclude, based solely on the common definitions of “traffic” or “trafficking,” and considering that the ultimate term in question is “aggravated felony,” that an offense that is not a felony and/or an offense which lacks a sufficient nexus to the trade or dealing of controlled substances constitutes “illicit trafficking” [under the aggravated felony definition.]”[243] 

There is quite a bit of controversy, however, on how to define “felony” in this context.  See § 3.57, supra.  Counsel must therefore bear in mind the rules of the jurisdiction in which the case arises.

[243] Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992) (emphasis in original).