(A)  Offenses Prohibited Under Statutes Other Than the Three Listed Controlled Substances Statutes.  Many arguably drug-related offenses may be punishable under federal law, but are not punishable under the three specific statutes listed in 18 U.S.C. § 924(c). 

 

For example, conviction of a firearm offense in relation to commission of a controlled substances offense, a violation of 18 U.S.C. § 924(c)(1), is not an aggravated felony under the second prong of the drug trafficking aggravated felony definition, because it is forbidden under the general criminal provisions of Title 18, rather than under any of the three federal controlled substances acts.  It is therefore not a drug trafficking aggravated felony.[656] 

 

Such an offense might be considered to fall within the first prong, as an illicit “trafficking” offense, but arguably does not, since the essence of these offenses is that they are firearms offenses, rather than “illicit trafficking” in a controlled substance.  These offenses may trigger deportation as firearms convictions, see Chapter 23, infra, or possibly as convictions of offenses “related to” a controlled substance, see § 21.13, infra, but the defendant might be eligible to apply for relief in immigration court since s/he would not have an aggravated felony conviction.  See Chapter 24, infra.

 

                A money laundering offense can be related to drug trafficking,[657] but it is forbidden under Title 18, the general criminal title, rather than under any of the three controlled substances acts, and would therefore not qualify under this second part of the drug trafficking aggravated felony definition. 

 

The same goes for any other offense contained in Title 18, rather than Titles 21 or 42.  Although these convictions may fit within another aggravated felony category or another ground of deportation, they do not fall within the three listed federal drug statutes, and therefore cannot constitute an aggravated felony under the second prong of the drug trafficking definition.  It might, however, trigger deportation as a money laundering conviction aggravated felony conviction, see § 19.77, infra, or trigger inadmissibility under the money laundering conduct-based ground of inadmissibility.[658]

[656] The same holds true for 18 U.S.C. § 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. § 924(g) (interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substances offense), and 18 U.S.C. § 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

[657] Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).

[658] INA § 212(a)(2)(I), 8 U.S.C. § 1182(a)(2)(I).

BIA

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

Third Circuit