In the related area of the controlled substances ground of deportation, the BIA has held that “facilitation” of sale constitutes a deportable conviction of violating a law relating to a controlled substance.[71]  On the other hand, a court of appeals may conclude that since the aggravated felony ground of deportation specifically states that “attempt” and “conviction” are included as aggravated felonies, but does not mention “facilitation,”[72] the latter offense is not included, and does not trigger deportation as a firearms conviction.  See § 7.7(B), supra. [73]  See also Appendix H, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include facilitation, thus giving rise to the argument that it meant to exclude facilitation convictions.

[71] Matter of Del Risco, 20 I. & N. Dec. 109 (BIA 1989) (conviction of facilitation of the unlawful sale of cocaine renders a noncitizen deportable on account of a conviction for violating a law relating to a controlled substance).

[72] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[73] See United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001), citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense did not constitute a drug-related conviction).

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE
Freire v. Holder, ___ F.3d ___ (2d Cir. May 27, 2011) (BIA has authority to grant request for continuance to allow adjustment of status before USCIS).