Safe Havens

 

(A)  Aggravated Felonies.[12]  See § § 7.64 ff., supra.

 

            (1)  Distribution

 

Third Circuit:

 

Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. November 26, 2003) (New Jersey conviction dated November 17, 1995, for possession with intent to distribute more than one ounce (twenty eight grams) of marijuana, in violation of N.J. Stat. Ann. § 2C:35-5b(11), might have failed to give the INS reason to believe the defendant had been a drug trafficker, triggering inadmissibility under INA 237(a)(2)(C)(i), 8 U.S.C. § 1227(a)(2)(C)(i), for which ground of inadmissibility there is no 212(c) or 212(h) waiver, so he cannot adjust status).

 

The District Court held that N.J. Stat. Ann. § 2C:35-5b(11) criminalizing possession of at least one ounce (and less than five pounds) of marijuana with intent to manufacture, distribute, or dispense it was analogous to 21 U.S.C. § 841(a)(1), and since the penalty for violating the federal statute under 21 U.S.C. § 841(b)(1)(D) is up to five years in prison, the offense was an aggravated felony as analogous to a federal felony.  However, because gratuitous distribution of an undefined “small amount” of marijuana “without remuneration is not inherently a felony under federal law,”[13] and the state statute under which the noncitizen pleaded guilty did not have remuneration as an element and the state statutory elements would be satisfied by proof of either distribution or possession with intent to distribute, the Third Circuit held that it could not determine from the state court judgment that the conviction necessarily entailed a finding of remuneration, and therefore could not be analogized to the federal offense.

 

            (2)  Sale

 

            (3)  Solicitation

 

Ninth Circuit:

 

United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. April 18, 2001) (California conviction of sale, transportation, or solicitation of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether it is an aggravated felony to enhance a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held in the Ninth Circuit not to constitute an aggravated felony or controlled substances offense).

Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation).

 

Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. § 13- 1002, was not conviction for violation of law “relating to a controlled substance,” within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994 Ed.); same argument can be made that this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. 1999) (conviction under Arizona’s general purpose solicitation statute qualifies as a “felony drug offense” under 21 U.S.C. § 802(44)).

 

            (4)  Transportation

 

Ninth Circuit:

 

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).

Saleres v. INS, 22 Fed.Appx. 831, 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 and there is no analogous offense under federal controlled substances acts).

 

United States v. Casarez-Bravo, 181 F.3d 1074 (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).

            (5)  Other

[12] See N. Tooby, Aggravated Felonies § § 5.19-5.22 (2003).

[13] Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. 2001).