This safe haven applies only to the first part of the aggravated felony drug trafficking category.  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”[495]  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.”[496]  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.[497]  Beyond that, however, transportation offenses,[498] 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.  For example, a conviction of transportation of a controlled substance,[499] 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.[500]

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

[496] Ibid.

[497] 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.”).

[498] 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. Rodgers, 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.

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

[500] 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).  See Appendix C (checklist of federal controlled substances offenses).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).

AGGRAVATED FELONY " DRUG TRAFFICKING " ILLICIT TRAFFICKING ELEMENT TEST " COMMERCIAL REQUIREMENT EXCLUDES SIMPLE POSSESSION OR TRANSFER WITHOUT CONSIDERATION
Catwell v. Attorney General, 623 F.3d 199, 209, n.10 (3d Cir. Oct. 13, 2010) (Under the illicit trafficking element test, a state felony drug conviction constitutes an aggravated felony if it contains a trafficking element. Evanson, 550 F.3d at 289. Essential to the concept of trading or dealing is activity of a business or merchant nature, thus excluding simple possession or transfer without consideration. Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001).); quoting Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (Pennsylvania offense of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), encompasses the act of distributing a small amount of marijuana for no remuneration, so the court could not determine that it was equivalent to a federal drug felony without more information about the conviction)).

AGGRAVATED FELONY - TRAFFICKING - MANUFACTURE
Garcia v. Attorney General, ___ F.3d ___, 2006 WL 2529471 (3d Cir. Sept. 5, 2006) (Manufacturing is not necessarily drug trafficking because it may be for personal use).

Tenth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING -- TRAFFICKING ELEMENT
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (court failed to reach claim that Utah misdemeanor conviction of possession of a controlled substance did not constitute a controlled substance offense, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), by analogy to the Sentencing Guidelines' definition requiring a trafficking element, because this specific claim had not been exhausted before the BIA), citing Salinas v. United States, 547 U.S. 188 (2006) (conviction for simple possession of a controlled substance is not a "controlled substance offense" for purposes of the United States Sentencing Guidelines because the Guidelines expressly define the offense to require a trafficking element).

Other

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Leocal plus Booker: drug possession is not an aggravated felony. With the tenfold increase in illegal reentry prosecutions in the past decade, one of the most common, and frustrating, sentencing problems is the treatment of prior convictions for simple possession of drugs under U.S.S.G. 2L1.2. Under the guidelines, noncitizens receive an enhancement to offense level 16 for having a conviction that is an "aggravated felony" under the Immigration and Nationality Acts definitional section, 8 U.S.C. 1101(a)(43). For immigration purposes, three Circuits reasonably construe section 1101(a)(43)(B) to require an element of trafficking before a drug conviction constitutes an "aggravated felony." But in the sentencing context, most Circuits treat mere possession of the tiniest amount of drugs as a "drug trafficking crime" that requires enhancement as an "aggravated felony." Here come two recent cases from the Supreme Court to the rescue.      In Leocal, the Supreme Court addressed the definition of "aggravated felony" under the INA in deciding whether drunk driving resulting in injury constituted a "crime of violence" under section 1101(a)(43)(A). The Court did two things that undercut the reasoning of the bad sentencing precedent.      First, the Court resorted to the common meaning of "crime of violence" to find that drunk driving was not within the natural or ordinary meaning of that term. Similarly, "drug trafficking crime" -- "naturally" and by its "ordinary meaning" -- does not include simple drug possession. Second, the Court held in footnote 8 that the statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context." The Ninth Circuit must therefore reconcile the different definitions of "drug trafficking crime" (as the predicate for being an "aggravated felony") in the immigration (Cazarez-Gutierrez & Ferreira) and sentencing (Ibarra-Galindo) contexts.      Booker provides important support for resolving the conflict in favor of the alien. The intra- and inter-Circuit split between the "hypothetical federal felony" approach and the "guidelines" approach is summarized and not resolved by the Sixth Circuit in Liao. As set out in the Garcia-Plancarte petition for certiorari here, the statute's plain meaning and the rules of statutory construction strongly support treatment of simple drug possession as outside the definition of "aggravated felony." The rationale for different treatment arises from the claim that national uniformity is necessary in the immigration context but not in the federal sentencing context. One thing both majorities in Booker agreed upon is the overarching congressional intent that defendants with similar backgrounds who commit the same offense should be treated similarly.      The "guidelines" approach typified by Ibarra-Galindo in the Ninth Circuit institutionalizes unwarranted disparity. A defendant convicted of the exact same immigration crime, with a prior conviction with the exact same elements, has an adjusted base level 8 for an Arizona conviction (Robles-Rodriguez), a base level of 16 for an Oregon conviction (Rios-Beltran), and 16 or 8 depending on "wobbler" factors for a California conviction (Fernandez-Cervantes, 13 Fed.Appx. 665 (9th Cir. 2001)). On the other hand, under the "hypothetical federal felony" approach, each defendant would have the same advisory guideline range: a prior conviction for mere possession, which is a misdemeanor under the federal Controlled Substances Act, would never be an "aggravated felony;" a prior conviction that included any of the trafficking and manufacture elements required for federal felonies under the CSA would always be an "aggravated felony."      Leocal and Booker are intervening Supreme Court authority that undercut the reasoning and "mode of analysis" of the split opinion in Ibarra-Galindo. Under the en banc opinion in Miller that frees district courts from such invalid precedent, aliens should no longer receive enhanced sentences based on mere drug possession because the district courts are no longer bound by precedent that defenders have long viewed as irrational and cruel. The Garcia-Plancarte petition is easily adaptable for use in the district courts.