Safe Havens

 

(G)  Transportation of a Controlled Substance.  Transportation of a controlled substance is not specifically forbidden under federal law (other than importation across a border).[538]  It should therefore not be considered an aggravated felony so long as the elements do not fall within the common sense definition of commercial drug trafficking.[539]  In many states, transportation can be committed even if the drugs are possessed for personal use.  A recent California criminal case penalized transportation of methamphetamines where the defendant simply walked across a parking lot carrying the drugs.[540]  Even if the state transportation conviction is a felony, it does not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, and (b) the offense does not fall within the alternate definition because the offense is not a violation of a federal CSA. 

In California, moreover, a single statute criminalizes sales, offer to sell, transportation for personal use, or gratuitous distribution.[541]  In United States v. Rivera-Sanchez,[542] the Ninth Circuit held that these statutes are divisible[543] because they include several distinct offenses, each with different elements.  One of these is “offer to sell,” which the Ninth Circuit had previously held does not constitute a controlled substances offense or a drug trafficking aggravated felony.[544]  Transportation has been held not to be an aggravated felony, since it may be violated by transportation for personal use only and there is no federal offense of transportation.[545]  If the record of conviction does not establish that the defendant pleaded guilty to an offense under the divisible statute that constitutes an aggravated felony, the conviction is not an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation under 8 U.S.C. § 1326(b)(2).  A conviction for a violation of this divisible “sales” statute under California law will therefore be a “safe” non-aggravated felony plea so long as the record of conviction does not establish which of the several included offenses is the specific basis of conviction under the divisible statute. 

 

Because a conviction for transportation of marijuana under statutes such as California Health and Safety § 11360 can be supported by a evidence of simple transportation for personal use,[546] a conviction of transportation does not meet the common sense definition of “drug trafficking.”[547]  Trafficking is defined as “the unlawful trading or dealing of any controlled substance.”[548]  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.”[549]  Simple possession or transfer without consideration are not included in the definition. [550] 

Also, transportation is not an offense listed within the three federal drug statutes cited in the aggravated felony definition.[551]  Therefore it is not analogous to any federal drug felony offense under the Barrett/Davis test, and thus cannot be considered an aggravated felony under the “federal felony test.”

 

A transportation conviction will nonetheless be held to be a conviction related to a controlled substance, see § § 7.138, et seq., infra, even though it is not an aggravated felony, and would thus trigger removal on that basis, but leave the immigrant eligible to apply for cancellation of removal or other relief.  A conviction for “offering to transport” a controlled substance, however, may be a complete safe haven.  See § 9.10, infra.

[538] See Appendix C, infra. 

[539] Saleres v. INS, 2001 WL 1526405 (9th Cir. Nov. 30, 2001) (unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).

[540] People v. Ormiston, 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567 (First Dist., Div. One, Jan. 22, 2003).

[541] California Health & Safety Code § 11360(a).  The other California sales statutes, such as Health & Safety Code § § 11352 (sale, distribution or transportation of narcotics such as heroin and cocaine) and 11377(a) (sale of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a), except that the specific controlled substances are different.

[542] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[543] A divisible statute refers to a statute that is broad enough to include multiple offenses, so that one or more may qualify as an aggravated felony (or other class of offenses carrying immigration consequences), and one or more may not.  Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[544] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001), citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense under a statute that proscribed solicitation to commit any offense did not constitute a drug-related conviction).  

[545] See Rivera-Sanchez, supra.

[546] See People v. Rogers, 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, 132 (1971); People v. Eastman, 13 Cal.App.4th 668, 16 Cal.Rptr.2d 608, 612-13 (1993).

[547] 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 career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use); Saleres v. INS, 2001 WL 1526405 (9th Cir. Nov. 30, 2001) (unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).

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

[549] Ibid.

[550] 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.”

[551] The closest may be importing into the customs territory of the United States, under 18 U.S.C. § 952, which has different elements.  United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a non-stop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).