Criminal Defense of Immigrants


§ 21.18 (B)

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(B)  Aggravated Felony.  Whether a conviction for first time simple possession qualifies as an aggravated felony was one of the most litigated issues in immigration law.  The Circuits were split on whether a state felony conviction for first time simple possession can be considered an aggravated felony, even though it is only a misdemeanor under federal law.  The United States Supreme Court finally addressed this issue in Lopez v. Gonzales, [149] and found that. to be considered an aggravated felony, a state conviction must be for an offense that would be a felony if prosecuted under federal law. See § 19.57-19.59, supra.


                On the other hand, any conviction for simple possession of cocaine base or flunitrazepam (the “date rape” drug) is clearly an aggravated felony, because these offenses are considered felonies under federal law.[150] 


                The Ninth Circuit, and others, have found that a conviction for a nonsubstantive offense other than attempt or conspiracy does not trigger this ground of inadmissibility.[151]  If the record does not specify the specific controlled substance possessed, the noncitizen may be able to avoid deportability, but not inadmissibility.[152]

[149] Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws § § 22-42-5, 22-6-1, 22-3-3, did not constitute a “felony punishable under the Controlled Substances Act,” under 18 U.S.C. § 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law).

[150] 21 U.S.C. § 844.

[151] See § 21.32, infra.

[152] See § 21.34, infra.



Ninth Circuit

Pagayon v. Holder, 642 F.3d 122, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of possession of a controlled substance, under Health & Safety Code 11377(a), constituted a controlled substances conviction, triggering deportation under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), where respondents admission in removal proceedings he pleaded to guilty as charged established the drug involved as methamphetamine which was listed in federal drug schedules).