Safe Havens

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).