Criminal Defense of Immigrants


§ 21.12 (B)

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(B)  Common Meaning Illicit Trafficking.  First, an aggravated felony is “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act).”[95]  The BIA interprets this to mean any felony drug offense under the common understanding of the word “trafficking,” which includes a commercial element.  This would include sale, possession for sale, or related offenses, although some courts have defined it more broadly.


                The elements of this branch of the drug trafficking aggravated felony category are:


                (a)           a conviction of an offense

                (b)           which is a felony

                (c)           of illicit trafficking (i.e., a commercial transaction)

(d)           in a controlled substance “(as defined in section 102 of the Controlled Substances Act)”.


The generic definition of “trafficking” is “the unlawful trading or dealing of any controlled substance”[96]  The Board of Immigration Appeals has explained that the concept of “trafficking” includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”[97]  Simple possession or transfer without consideration are not included in the definition.[98]

                (B)  Felony Offense Listed in Federal Drug Statutes.  Second, in the alternative, in order to constitute an aggravated felony under this theory, the state offense must be (a) exactly analogous to a federal drug offense named in the statute, under the test provided in Matter of Barrett,[99] and (b) a felony.  How to determine whether the offense is a “felony” currently varies from circuit to circuit, but may depend on the state designation of the offense or the maximum possible punishment that could be imposed if the offense were prosecuted under federal law.[100]


To qualify under the second prong, a conviction must:


(a)       be a felony;

(b)       include all elements of a federal drug offense listed in the Controlled Substances Act (21 U.S.C. § § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.);[101] and

(c)        involve a controlled substance on the federal list (21 U.S.C. § 802).


Under either prong, the conviction may have occurred under federal or state law, or any foreign law (for which the term of imprisonment was completed within the previous fifteen years).[102]  Violations of local, tribal, and arguably military law, however, are not included.  See § 7.26, supra.


                All offenses that fall under the aggravated felony drug trafficking ground will also fall under the controlled substances ground,[103] and most offenses covered under this ground will also be considered crimes of moral turpitude.[104]  There is currently no “aggravated felony” based ground of inadmissibility.

[95] Controlled Substances Act § 102 is the large federal schedule listing illegal drugs, including marijuana and hashish.

[96] Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992).

[97] Ibid.

[98] Ibid; see also Black’s Law Dictionary 1495 (6th ed. 1990) (“trafficking” is “[t]rading or dealing in certain goods . . . commonly used in connection with illegal narcotic sales.”

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

[100] See § 21.39, infra.

[101] See Appendix C, infra, for a listing of these offenses.

[102] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

[103] See § 21.13, infra.

[104] See § 21.14, infra.