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. 

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

Fifth Circuit

AGGRAVATED FELONY - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), rejecting argument that because Texas law defines "delivery" as encapsulating "offering to sell," it is broader than the definition of "delivery" in the federal statute, which does not include offers to sell and because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under Health & Safety Code 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal), following United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) (Texas conviction for possession with intent to deliver a controlled substance, under Texas Health and Safety Code 481.112(a), constitutes a "controlled substance offense" for the purposes of a U.S.S.G. 2K2.1(a)(4)(A) sentence enhancement, because this offense is indistinguishable from "possession with intent to distribute," one of the offenses listed in the USSG definition of a "controlled substance offense").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF TELEPHONE TO FACILITATE
United States v. Pillado-Chapparo, 543 F.3d 202 (5th Cir. Sept. 17, 2008) (federal conviction for use of a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. 843(b), was a drug trafficking offense for illegal re-entry purposes).