Aggravated Felonies

 

The second prong of the aggravated felony drug trafficking definition depends upon whether the offense violates certain listed federal statutes, or would violate those statutes if the offense was prosecuted in federal court.  See § 5.38, supra.  This is not required under the first prong, which only requires that the conviction involve drug “trafficking.”  This discussion therefore applies only to the second part of the aggravated felony drug trafficking definition.

 

The second prong of the aggravated felony drug trafficking definition includes “a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) . . . .”[341]  Section 924(c) in turn provides: “For purposes of this subsection, the term “drug trafficking crime” means any felony 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.).”[342]

 

This requires that the elements of a state drug offense must be exactly analogous to a federal drug offense named in the statute,[343] under the test provided in Matter of Barrett,[344] so that a conviction under the elements of the state offense would always fall entirely within the boundaries of a federal drug offense under one of the three federal controlled substances statutes.[345]  Since federal law includes a fairly small number of drug offenses, a surprising number of state drug offenses do not meet this test.

 

For example, federal law does not prohibit:

 

·        Being in a place where drugs are being used.

·        Being under the influence.

·        Bunk (i.e., sale of a substance pretending it is a controlled substance).

·        Driving under the influence of drugs.

·        Firearms offenses related to commission of a drug offense.

·        Offering to sell drugs.

·        Transportation of drugs.

·        Possession of drug paraphernalia.

·        Unauthorized Disposal of Hazardous Waste

·        Various prescription offenses.

 

Federal law does prohibit simple possession, possession with intent to distribute, sales, importation, manufacturing, use of a firearm in the commission of a drug offense, maintaining a place for sale of drugs, and a few other offenses.  Check Appendix E, infra, to see if the state offense is actually forbidden under federal law, or if the state elements are different.  If the elements of the state offense do not include all elements of a federal drug offense, the state offense is not an aggravated felony under the second prong test.[346]

[341] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[342] 18 U.S.C. § 924(c).

[343] A state conviction triggers deportation if the conduct falls entirely within a federal ground of deportation, even though the state statute omits the federal jurisdictional element.  Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002).  See § 4.35, supra.

[344] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990) (state offense must “include all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws”).

[345] Ibid.  Legislative history shows that Matter of Barrett was codified at INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), the drug trafficking aggravated felony definition.  Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992); Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[346] If the state offense additionally does not meet the common definition of trafficking, it does not meet the test under the first prong, and is not a aggravated felony drug offense at all.