Criminal Defense of Immigrants

(B)  Drug Trafficking.  It appears only one case so far has had occasion to determine that a firearms conviction is an aggravated felony drug trafficking offense.[125]  A firearms offense cannot qualify as a drug trafficking aggravated felony under Prong II of the definition[126] unless it is part of one of the three specific federal controlled substances statutes.  See § 19.56(B), supra.  On the other hand, the BIA has found that a conviction for use of a firearm during the commission of a felony was not an offense “related to” a controlled substance.[127] 

[125] Matter Of KL, 20 I. & N. Dec. 654 (BIA June 3, 1993) (respondent deportable for carrying a semi-automatic pistol during and in relation to a drug trafficking crime which is prosecutable because 18 U.S.C. § 924(c)(1) (Supp. II 1990) creates distinct offenses separate from the underlying offenses, rather than merely enabling penalty enhancement, distinguishing Matter of Rodriguez-Cortes; respondent deportable under former INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as a noncitizen convicted at any time after entry of a firearm violation.).  Counsel may wish to challenge this or a related finding, on the basis that the use of a firearm is a sentence enhancement, rather than an element of the offense.  See § 23.4, supra.

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

[127] Cf. Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) (federal conviction of unlawful carrying of firearm during commission of a felony not a drug offense even where felony identified as drug offense).