Safe Havens

(A)  Offenses Prohibited Under Statutes Other Than the Three Listed Controlled Substances Statutes.  Conviction of a firearm offense in relation to commission of a controlled substances offense is not an aggravated felony under Prong II of the drug trafficking aggravated felony category, because it is not an offense under any of the three federal controlled substances acts.  A drug trafficking aggravated felony “includes” drug trafficking offenses as defined in 18 U.S.C. § 924(c)(2), which provides: “For purposes of this subsection, the term “drug trafficking crime” means any 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 the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).”  Since using or carrying a firearm during or in connection with a crime of violence or a drug trafficking offense, under 18 U.S.C. § 924(c)(1), is not within titles 21 or 46, this offense is not a drug trafficking aggravated felony.  The same holds true for 18 U.S.C. § 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. § 924(g) (interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substances offense), and 18 U.S.C. § 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).  These offenses might be considered to fall within prong I, the common sense definition of drug trafficking, but they might not, since the essence of these offenses is that they are firearms offenses, rather than “illicit trafficking” in a controlled substance.  These offenses may, however, trigger deportation as firearms convictions or as convictions of offenses “related to” a controlled substance, but the defendant might be eligible to apply for relief in immigration court since s/he would not have an aggravated felony conviction.

            Any other state or federal drug offense would also fail to qualify under this second part of the definition so long as it was not forbidden under one of these three specific acts.  For example, a money laundering offense can be related to drug trafficking,[507] but it is forbidden under Title 18, the general criminal title, rather than under any of the three controlled substances acts, and it would therefore not qualify under this second part of the drug trafficking aggravated felony definition.  The same goes for any other offense contained in Title 18, rather than Titles 21 or 42.

            Although these convictions may fit within another aggravated felony category or another ground of deportation, they do not fit here.

[507] Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. October 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).