Criminal Defense of Immigrants

The INA defines as an aggravated felony a conviction of:

(B) illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) . . . .[540]

This definition has been divided into two separate tests.  See § 19.56, infra.  If the conviction meets either test, it is a drug trafficking aggravated felony.  Whether the offense of simple possession and certain other minor offenses trigger removal as aggravated felonies has been the focus of a long-standing debate among the courts.  However, at least one such issue has recently been resolved by the United States Supreme Court.  See § 19.58, infra.  Whether a state’s definition of controlled substance is equivalent to the federal definition, and what happens when the two definitions are not equivalent, is also an important issue.  See § 19.60, infra.

Other key issues that arise in the context of aggravated felony drug offenses include the definition of “felony” for immigration purposes,[541] immigration effects of expungements of convictions,[542] and whether certain non-substantive offenses (e.g., solicitation) should be considered aggravated felonies.[543]

[540] 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.

[541] See § 10.87, supra. 

[542] See § § 11.17-11.20, supra.  

[543] See § § 19.13- 19.20, supra.