Aggravated Felonies

For the purposes of the first prong of the aggravated felony drug trafficking definition, the offense must actually involve “trafficking.”  The courts have generally ignored the “trafficking” language in the second prong, instead finding that any offense punishable under the Controlled Substances Act (21 U.S.C. § § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), regardless of whether the offense is related to drug “trafficking.”[334]  This discussion therefore relates only to the first prong of the aggravated felony drug trafficking definition.

The generic or common sense definition of “trafficking” — the first part of the aggravated felony drug trafficking category — is “the unlawful trading or dealing of any controlled substance”[335]  The Board of Immigration Appeals has explained that the concept of “trafficking” includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”[336]  Therefore, any offense that does not have a commercial transaction as an essential element would constitute a safe haven under this portion of the definition. 

Simple possession of any controlled substance, and transfer of a controlled substance without consideration, are not included in the definition.[337]  Beyond that, however, transportation offenses,[338] importation offenses, and even manufacturing offenses, can be performed for personal use, as long as they have no essential element of the offense that requires a commercial transaction. 

Some offenses that do not have “trafficking” as an element will nevertheless qualify as aggravated felony drug offenses if they qualify under the second prong.  Other offenses, however, are aggravated felony safe havens because they do not meet either test.  A conviction of transportation of a controlled substance, [339] for example, if it includes transportation for personal use, does not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, since there is no commercial element, and (b) it does not fall within the alternate drug trafficking definition because the offense is not a violation of any of the three listed federal statutes.[340]

[334] See, e.g., Matter of Barrett, 21 I. & N. Dec. 171 (BIA 1990).

[335] Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992).

[336] Ibid.

[337] Ibid. See also Black’s Law Dictionary 1495 (6th ed. 1990) (“trafficking” is “[t]rading or dealing in certain goods . . . commonly used in connection with illegal narcotic sales.”); Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004) (looking to “ordinary meaning” to define terms in the aggravated felony definition).  But see United States v. Palacios-Quinonez, 431 F.3d 832 (5th Cir. Dec. 1, 2005) (purchase for sale, in violation of California Penal Code § 11351, equals constructive possession, and therefore qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i)); United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. June 10, 2003) (Georgia conviction of possession of 28 grams or more of methamphetamines, in violation of O.C.G.A. § 16-13-31(e), constituted a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level increase in sentence for illegal re-entry, since Georgia’s inference of intent to distribute from possession of an elevated amount of drugs is permissible).  Palacios and Madera violate the categorical analysis limiting the government to the elements of the offense.  See § 4.17, supra.

[338] People v. Ormiston, 105 Cal.App.4th 676 (Cal. Ct. App. Jan. 22, 2003) (California Penal Code § 11379, transportation of drugs, can be violated by walking across a parking lot with drugs in a pocket).  The statute may also be violated “without regard to the particular purpose for which the transportation was provided.”  People v. Rogers, 5 Cal.3d 129 (1971).  The court found the legislative purpose of the statute to include reducing and inhibiting personal drug use.  Id. at 685.

[339] For example, a violation of California Health & Safety Code § 11379(a) (transportation of a controlled substance).

[340] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (conviction of transportation of marijuana under California Health & Safety Code § 11360 cannot serve as a federal career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).