Criminal Defense of Immigrants

(C)  Manufacturing a Controlled Substance.  The offense of manufacturing a controlled substance, under some state laws, has no knowledge element; federal manufacturing does.  Since it is possible to manufacture drugs for personal use,[665] the elements of the state statute may not establish the commercial element necessary to qualify the offense as an aggravated felony under the common-sense trafficking prong of the definition, and the difference in the mental elements between the state offense (with no knowledge element) and the federal analogue (which does have a knowledge element), is sufficient that the elements of the state offense are not punishable under a federal CSA, and the state conviction therefore does not qualify under the second prong of the definition.[666]

[665] Garcia v. Attorney General, 462 F.3d 287 (3d Cir. Sept. 5, 2006).

[666] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).