Safe Havens

 

As discussed above, for a controlled substances conviction to constitute an aggravated felony, the conviction must be a felony, and must either be punishable under federal law, or fit within the definition of a “drug trafficking” offense (i.e., involve some sort of remuneration).  A conviction for distribution of a controlled substance may, in some cases, avoid these requirements.

 

First, a person can commit the offense of distribution, under many statutes, without intending to receive anything in return.  For example, a generous host at a party might offer a controlled substance to his guests for free.  Therefore, such a distribution statute would be divisible for purposes of the “drug trafficking” prong of the aggravated felony definition.[46]  See § 7.65, supra.

 

Second, if the immigration authorities in the jurisdiction in which the case arises will recognize the conviction as a misdemeanor, distribution of a small amount of marijuana, without remuneration, will not be considered an aggravated felony because it is not a felony.  See § § 7.22, 7.66, supra. 

Although distribution of a controlled substance is generally punishable as a felony under federal law,[47] distribution of a small amount of marijuana or hashish [48] is not a felony under federal law:

 

Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated [as a person convicted of simple possession of marijuana] as provided in 844 [punishing simple possession of marijuana as a misdemeanor] and section 3607 of Title 18 [the Federal First Offender Act].[49]

 

This means that anyone convicted of “knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance”[50]  by free distribution of a small amount of marijuana must (“shall”) be treated as if convicted of simple possession of a controlled substance under 21 U.S.C. § 844(a), which means it is a federal misdemeanor. 

 

In deportation proceedings, the burden is on the DHS to show that the respondent was convicted of a deportable offense.[51]  The DHS should be required to prove that the amount distributed was not “small.”[52]  Unless the DHS can make this showing, the offense should fall within 21 U.S.C. § 841(b)(4),  making the distribution treatable as though it were a federal misdemeanor conviction of simple possession.  Congress does not define “small amount” for purposes of 21 U.S.C. § 841(b)(4).  Rather, the term “small amount” is taken to be relative to the circumstances of the case.[53]  Where there is nothing in the record of conviction that indicates how much marijuana was involved in the offense, the government cannot prove the quantity was not “small” and thus cannot prove the offense would not have been a misdemeanor if prosecuted in federal court.

            The DHS also bears the burden in applying a divisible statute analysis.  See § 5.23, supra.  In Wilson v. Ashcroft,[54] the Third Circuit found that the New Jersey offense punishing possession of at least one ounce[55] (and less than five pounds) of marijuana with intent to manufacture, distribute, or dispense[56] was generally analogous to the offense defined in 21 U.S.C. § 841(a)(1), a federal felony.  However, because the state statute under which the defendant pleaded guilty did not have remuneration as an element, the court held that the INS could not demonstrate from the record of conviction that Wilson’s conviction was not for distribution of a small amount of marijuana without remuneration.

 

            The District Court held that a violation of 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,”[57] 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.[58]

 

            In Matter of LG,[59] the BIA held that a state felony simple possession offense that would be a misdemeanor under the Controlled Substances Act is not an aggravated felony for immigration purposes, since it cannot be considered a “felony” under 18 U.S.C. § 924(c)(2), which defines controlled substances offenses for purposes of the aggravated felony definition.  For deportation, but not sentencing, purposes, this rule applies within the Second, Third, Sixth, and Ninth Circuits.[60]  This is an open question in the Seventh Circuit.[61]

Under 21 U.S.C. § 841(b)(4), a defendant convicted of distribution of a small amount of marijuana should receive the same treatment.  Therefore, at least within the Second, Third, and Ninth Circuits, even if a state distribution conviction is a felony under the law of the convicting state, the conviction should be treated as if it were a misdemeanor under federal law, and will not be considered an aggravated felony offense under either part of the definition.

 

            Third, distribution of a small amount of marijuana is also, under 21 U.S.C. § 841(b)(4), subject to Federal First Offender Act[62] treatment.  Therefore, if the conviction arose in federal court in any circuit, or in a state court located within the Ninth Circuit, the conviction may be effectively expunged for immigration purposes, just as if the conviction were for simple possession.  See § 4.27, supra.

 

            Looking to the controlled substances ground of deportability, given the special treatment distribution of a small amount of marijuana receives under 21 U.S.C. § 841(b)(4), such a conviction should, arguably, also fall within the “single offense involving possession for one’s own use of thirty grams or less of marijuana” exception.  Even if a distribution conviction is not held to fall within this exception, a conviction of distribution of a small amount of marijuana followed by an expungement of the conviction under the FFOA, or under an analogous form of state rehabilitative relief within the Ninth Circuit, should cease to be a conviction for any immigration purpose.  See § 4.27, supra.

 

While distribution of a controlled substance under 21 U.S.C. § 841(a)(1) has been found to be a crime of moral turpitude,[63] this decision was based on case law dealing with intentional and commercial drug trafficking.[64]  Arguably evil intent is not inherent in distribution of a small amount of marijuana without remuneration, and whether the offense is a crime of moral turpitude depends upon the statute of conviction.

            Finally, the fact that a person may have distributed a small amount of marijuana does not necessarily imply that he or she used the marijuana.  The DHS therefore would not, simply by fact of the conviction, be able to demonstrate that the noncitizen was a drug abuser or addict.

 

[46] See Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (distribution without remuneration is not a “drug trafficking” offense).

[47] 21 U.S.C. § 841(a)(1).

[48] See § 9.5(B), infra.

[49] 21 U.S.C. § 841(b)(4).

[50] 21 U.S.C. § 844(a).

[51] Woodby v. INS, 385 U.S. 276 (1966) (INS must prove deportability by clear, unequivocal, and convincing evidence).

[52] See also United States v. Lowe, 143 F.Supp.2d 613, 616-619 (S.D. W. Va. 2000) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to hold that to sentence a defendant convicted of distribution of marijuana of a federal felony, the Government must show beyond a reasonable doubt that the amount involved was not “small”).

[53] See United States v. Damerville, 27 F.3d 254, 258-259 (3d Cir. 2001) (17.2 grams not a “small amount” when distributed in a prison setting).

[54] Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003).

[55] 28.5 grams.

[56] N.J. Stat. Ann. § 2C:35-5b(11).

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

[58] 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 (28.5 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 INA § § 212(c) or 212(h) waiver, so he cannot adjust status).

[59] Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[60] Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)) (alternative holding); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (prior drug possession conviction was not an aggravated felony since it would not be punishable as felony under federal drug laws and does not contain a trafficking element).

[61] Garcia v. Ashcroft, 394 F.3d 487 (7th Cir. Jan. 6, 2005) (petition for review is transferred to the district court and must be construed as a petition for a writ of habeas corpus to determine whether noncitizen’s state felony conviction for possession of a controlled substance, which is punishable only as a misdemeanor under federal law, qualifies as an aggravated felony).

[62] 18 U.S.C. § 3607.

[63] Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (distribution of cocaine, under 21 U.S.C. § 841(a)(1) (1988), is a conviction for a crime involving moral turpitude, where knowledge or intent is an element of the offense).

[64] See, e.g., United States ex rel. Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960); DeLuca v. O’Rourke, 213 F.2d 759 (8th Cir. 1954) (while there may be technical, inadvertent, and insignificant violations of the laws relating to narcotics which do not involve moral turpitude, there can be nothing more depraved or morally indefensible than conscious participation in the illicit drug traffic, and dealing with narcotic drugs known to have been smuggled into the United States is certainly no less reprehensible and probably no less a fraud upon the revenues than the offenses involved in the Jordan case).