Safe Havens

This safe haven applies only to the second part of the aggravated felony drug trafficking category.   The second part provides that an aggravated felony is an illicit trafficking offense “including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) . . . .”[501]  This requires that the elements of a state drug offense must be exactly analogous to a federal drug offense named in the statute, under the test provided in Matter of Barrett,[502] so that a conviction under the elements of the state offense would fall entirely within the boundaries of a federal drug offense under one of the three federal controlled substances statutes. [503]  This leads to a number of different partial safe havens, in the sense that they do not fall within the second part of this definition.

            If the elements of the state offense do not include all elements of a federal drug offense, the state offense is not an aggravated felony.  If it does not meet the common definition of trafficking, in order to be considered an aggravated felony, a state analogue to a federal drug felony must include all essential elements of a federal drug offense.[504]  Since federal law includes a fairly small number of drug offenses,[505] a surprising number of state drug offenses do not meet this test.

For example, federal law does not prohibit being in a place where drugs are being used, being under the influence, driving under the influence of drugs, offering to sell drugs, transportation of drugs, possession of drug paraphernalia, and various prescription offenses.  Federal law does prohibit simple possession, possession with intent to distribute, sales, importation, manufacturing, use of a firearm in the commission of a drug offense, maintaining a place for sale of drugs, and a few other offenses.[506]  Check Appendix D to see if the state offense is actually forbidden under federal law, or if the elements are different.  If the offense is not forbidden under federal law, it is not an aggravated felony.

[501] 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.

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

[503] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990) (state offense must “include all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws”).  Legislative history shows that Matter of Barrett was codified at INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), the drug trafficking aggravated felony definition.  Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992); Matter of LG, 21 I. & N. Dec. 89 (BIA 1994).

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

[505] For a checklist of federal controlled substances offenses, see Appendix C.

[506] For a checklist of federal controlled substances offenses, see Appendix C.