The Board of Immigration Appeals (BIA) has just overturned a May 6,
2008, order of an immigration judge that found an alien deportable under
former sections 241(a)(2)(A)(iii), and (B)(i) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and(B)(i) (1994), as an
alien convicted of an aggravated felony and a controlled substance
violation.
In this specific case the alien is a native and citizen of El Salvador. He entered the United States without inspection on March 28, 1984, and was subsequently convicted on September 4, 1996, in the 185th District Court of Harris County, Texas for delivery by actual transfer of a simulated controlled substance (cocaine).
The BIA ruled that the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). See Matter of Fidel Antonio SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010)
The BIA reasoned that a State drug offense may only constitute an aggravated felony under the “illicit trafficking” clause if it is (1) a felony under the law of the convicting sovereign that (2) involved “unlawful trading or dealing” in (3) a Federally controlled substance. Therefore, because simulated cocaine is not a Federally controlled substance, a conviction for delivery of a "simulated" controlled substance does not constitute an “illicit trafficking” offense, and therefore is not an aggravated felony.
In this specific case the alien is a native and citizen of El Salvador. He entered the United States without inspection on March 28, 1984, and was subsequently convicted on September 4, 1996, in the 185th District Court of Harris County, Texas for delivery by actual transfer of a simulated controlled substance (cocaine).
The BIA ruled that the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). See Matter of Fidel Antonio SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010)
The BIA reasoned that a State drug offense may only constitute an aggravated felony under the “illicit trafficking” clause if it is (1) a felony under the law of the convicting sovereign that (2) involved “unlawful trading or dealing” in (3) a Federally controlled substance. Therefore, because simulated cocaine is not a Federally controlled substance, a conviction for delivery of a "simulated" controlled substance does not constitute an “illicit trafficking” offense, and therefore is not an aggravated felony.
