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).

 

AGGRAVATED FELONY - DRUG TRAFFICKING - COMMON SENSE INTERPRETATION OF THE STATUTE SUGGESTS SIMPLE POSSESSION DOES NOT CONSTITUTE TRAFFICKING
The ordinary meaning of "illicit trafficking" in a controlled substance does not include simple possession. See Leocal v. Ashcroft, 543 U.S. ___, 160 L. Ed. 2d 271, 125 S. Ct. 377 (2004) (Supreme Court uses "ordinary meaning" approach to conclude that accidental injury does not fall within ordinary meaning of "crime of violence" aggravated felony definition: "In construing both parts of 16, we cannot forget that we ultimately are determining the meaning of the term crime of violence. The ordinary meaning of this term, combined with 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.").

AGGRAVATED FELONY - DRUG TRAFFICKING - MONEY LAUNDERING UNDER $10,000 AS A DRUG TRAFFICKING AGGRAVATED FELONY
A conviction of money laundering, under 18 U.S.C. 1956, 1957, should not be considered a drug trafficking aggravated felony. It is certainly not a drug trafficking crime, under the second theory, since it cannot be considered a "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 Chapter 705 of Title 46." (18 U.S.C. 924(c)(2), referred to in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B). As the Ninth Circuit held: "Lara-Chacon's conviction under the Arizona racketeering statute is not a 'drug trafficking crime' because his crime is not 'punishable under the Controlled Substances Act.'" Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).

The Ninth Circuit continued:

In assessing whether a crime is a drug trafficking crime, we consider categorically whether the "full range of conduct" encompassed by the statute of conviction is punishable by the Controlled Substances Act. United States v. Rivera-Sanchez, 247 F.3d 905, 907-09 (9th Cir.2001) (en banc). The money laundering statute under which Lara-Chacon was convicted penalizes many different types of racketeering that are not punishable by the Controlled Substances Act, which makes it illegal to "use or invest, directly or indirectly, any part of such income[derived from committing any prohibited drug offense punishable by more than one year], or the proceeds of such income." See 21 U.S.C. 854. The Arizona statute under which Lara Chacon was convicted defines money laundering as follows: "A person is guilty of money laundering in the second degree who: 1. Acquires or maintains an interest in, transacts, transfers, transports, receives or conceals the existence or nature of racketeering proceeds knowing or having reason to know that they are the proceeds of an offense." Ariz.Rev.Stat. 13-2317(A)(1) (West 1999). In addition to acts for financial gain "involving ... prohibited drugs, marijuana, or other prohibited*1153 chemicals or substances," racketeering under Arizona law includes acts involving theft, asserting false claims, obscenity, a scheme or artifice to defraud, prostitution, terrorism, drug crimes punishable for less than one year, and counterfeiting, among others. Ariz.Rev.Stat. 13-2301(D)(4) (West 1999). Thus, the "full range of conduct" encompassed by the Arizona statute is not punishable by the Controlled Substances Act, which, for example, does not address terrorism, prostitution, theft, drug crimes punishable for less than a year, or obscenity. We therefore turn to the modified categorical approach.

(Id. at 1152-1153.)

A money-laundering conviction could therefore only be a drug trafficking aggravated felony if it was included within the plain language of the definition: "illicit trafficking in a controlled substance . . . ." (Ibid.) Standing alone, a financial transaction involving drug-trafficking proceeds does not appear to fall within this definition, since no federally defined controlled substances are exchanged in the money laundering transaction itself. In Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir. 2003), a conviction under a state money-laundering statute was found not to be a drug-trafficking aggravated felony, but in that case the government only had a PSR which was not admissible under the modified categorical approach. Logically, financial transactions involving the proceeds of a sale of drugs are distinguishable from the drug transaction itself, and so should not fall under the "illicit trafficking" portion of the drug trafficking aggravated felony definition.

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF PSEUDOEPHEDRINE WITH INTENT TO MANUFACTURE METHAMPHETAMINE
Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. Apr. 12, 2010) (state offense does not need to involve use of a firearm to qualify as an aggravated felony drug trafficking crime, despite reference in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) to 18 U.S.C. 924).

Third Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - DEFINITION OF "ILLICIT TRAFFICKING" - TRAFFICKING ELEMENT
Garcia v. Attorney General, ___ F.3d ___, 2006 WL 2529471 (3d Cir. Sept. 5, 2006) (even though statute was phrased in disjunctive, record of conviction including complaint indicated defendant had sold, delivered, and possessed controlled substances with intent to deliver, which sufficiently established trafficking element to constitute drug trafficking aggravated felony under "illicit trafficking" route of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - PURCHASE FOR SALE
United States v. Palacios-Quinonez, __ F.3d __, 2005 WL 3214173 (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)).

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF PSEUDOEPHEDRINE WITH INTENT TO MANUFACTURE METHAMPHETAMINE
Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. Apr. 12, 2010) (state offense does not need to involve use of a firearm to qualify as an aggravated felony drug trafficking crime, despite reference in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) to 18 U.S.C. 924).