Safe Havens

 

This statutory aggravated felony definition includes a conviction of an offense 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) . . . .[484]

 

            A drug trafficking offense thus can be categorized as an aggravated felony if it meets either of two tests provided in the statute. 

 

            (1) First, an aggravated felony is “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act).”[485]  The BIA interprets this to mean any felony drug offense under the common understanding of the word “trafficking” which includes a commercial element.  This would include sale, possession for sale, or related offenses, although some courts have defined it more broadly.

 

            The elements of this branch of the drug trafficking aggravated felony category are:

            (a)       a conviction of an offense

            (b)       which is a felony

            (c)       of illicit trafficking (i.e., a commercial transaction)

(d)       in a controlled substance “(as defined in section 102 of the Controlled Substances Act)”.

 

The generic definition of “trafficking” is “the unlawful trading or dealing of any controlled substance”[486]  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.”[487]  Simple possession or transfer without consideration are not included in the definition.[488]

 

            (2) Second, in the alternative, in order to constitute an aggravated felony under this theory, the state offense must be (a) exactly analogous to a federal drug offense named in the statute, under the test provided in Matter of Barrett,[489] and (b) a felony under the law of the jurisdiction of the conviction, under the federal test for whether a conviction with the maximum of the state offense constitutes a felony, or under the hypothetical federal felony test in which a state conviction is a felony if it would have been a felony if it had been prosecuted in federal court.

 

To qualify under the second prong, a conviction must:

 

(a)     be a felony under the law of the conviction jurisdiction or under federal law, see § 7.22, supra;

(b)    include all elements of a federal drug offense listed in 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.); and

(c)     involve a controlled substance on the federal list (21 U.S.C. § 802).

 

Under either prong, the conviction may have occurred under federal or state law, or any foreign law (for which the term of imprisonment was completed within the previous fifteen years).[490]  Violations of local law, however, are not included.  See § 7.16, supra.

[484] 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.

[485] Controlled Substances Act § 102 is the large federal schedule listing illegal drugs, including marijuana and hashish.

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

[487] Ibid.

[488] 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.”

[489] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).

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