In re L-G-
| Decision Date | 27 September 1995 |
| Docket Number | Interim Decision No. 3254. |
| Citation | 21 I&N Dec. 89 |
| Parties | In re L-G-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service has moved for reconsideration of our decision of November 3, 1994.1 In that decision, we sustained the respondent's appeal and remanded the record to the Immigration Judge for further consideration of the respondent's application for asylum and withholding of deportation under sections 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) (1994). In so doing, we found that the respondent's offense under Louisiana law was not analogous to a felony under the federal drug laws. Therefore, we concluded that the respondent's offense was not, on the record before us, an "aggravated felony" under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993), and that the respondent was eligible to apply for asylum and withholding of deportation.
Execution of our order has been deferred pending disposition of the instant motion. The motion to reconsider will be granted. Upon reconsideration, we will affirm our prior order.
The respondent was convicted on November 13, 1990, in the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana, of the offense of possession of in excess of 400 grams of a Schedule II, Controlled Dangerous Substance, to wit, cocaine, in violation of section 40:967F(2) of the Louisiana Revised Statutes. As a result of that conviction, he was sentenced to serve a term of 20 years at hard labor. The respondent's offense of simple possession of a controlled substance is classified as a felony under Louisiana law because of the sentence imposed. See La. Code Crim. Proc. Ann. art. 933(3) (West 1984) (). The record does not reflect that the respondent has any other convictions.
The respondent was charged with deportability under sections 241(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B)(i) (1994), as an alien who has been convicted of an aggravated felony and a controlled substance violation. In a decision dated June 8, 1994, the Immigration Judge found the respondent deportable as charged. He further determined that the respondent was ineligible, as an alien convicted of an aggravated felony, for asylum and withholding of deportation. He therefore pretermitted the filing of an application for such relief. The respondent appealed.
In our prior decision in this case, we noted that pursuant to Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), which was clarified by Matter of Davis, 20 I&N Dec. 536 (BIA 1992), a state drug conviction could be considered a conviction for a "drug trafficking crime," and therefore an aggravated felony, if the underlying offense was analogous to a felony under the federal drug laws. Accordingly, we addressed the question of whether the respondent's single offense of simple possession of cocaine was analogous to a federal felony drug offense.
The Controlled Substances Act at 21 U.S.C. § 844(a) (1994) criminalizes simple possession of controlled substances. However, simple possession of more than 5 grams of a mixture or substance which contains "cocaine base" is the sole offense under 21 U.S.C. § 844(a) that is punished as a felony even where the defendant has no prior drug convictions. If the defendant has any prior drug convictions, simple possession of any controlled substance is also a felony under 21 U.S.C. § 844(a). As the respondent's single drug conviction under Louisiana law involved "cocaine," not "cocaine base," we determined in our prior order that his offense was not analogous to a felony under the Controlled Substances Act. We therefore held that the record failed to establish that the respondent was convicted of an aggravated felony within the meaning of the Act.
We have considered the Service's new arguments regarding the proper definition for determining what is a "felony" for immigration purposes. We reconfirm our conclusion that the respondent's conviction is not for an aggravated felony.
The issue now presented by this case is whether the respondent's drug offense qualifies as an aggravated felony under our immigration laws simply because it is classified as a felony under Louisiana law. In resolving this issue, we must decide whether a federal or state definition is applicable when determining whether a state drug offense qualifies as a "felony" under 18 U.S.C. § 924(c)(2) (1994), and therefore as an "aggravated felony" under section 101(a)(43) of the Act.
As a preface to discussion of this issue, we briefly set forth the statutes and case law which are pertinent to the question.
Section 101(a)(43) of the Act defines a drug-related "aggravated felony" as follows:
The term "aggravated felony" means... any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code .... Such term applies to offenses described in the previous sentence whether in violation of Federal or State law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. (Emphasis added.)
Under 18 U.S.C. § 924(c)(2), a "drug trafficking crime" is defined as "any felony punishable under 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.)." (Emphasis added.)
The Controlled Substances Act at 21 U.S.C. § 802(13) (1994) provides: "As used in this subchapter: The term `felony' means any Federal or State offense classified by applicable Federal or State law as a felony." The definitions under 21 U.S.C. § 802 also apply to the Controlled Substances Import and Export Act, see 21 U.S.C. § 951(b) (1994), and the Maritime Drug Law Enforcement Act, see 46 U.S.C. App. § 1903(i) (1994).
The Board's previous decisions, Matter of Davis, supra, and Matter of Barrett, supra, essentially established a two-pronged test ("Davis/Barrett test") for determining whether a state drug offense qualifies as an aggravated felony under section 101(a)(43) of the Act. Under the first prong of that test, a state drug offense is an aggravated felony if it is a felony under state law and has a sufficient nexus to unlawful trading or dealing in a controlled substance to be considered "illicit trafficking" as commonly defined. Matter of Davis, supra. In its motion, the Service does not contend that the respondent's Louisiana drug offense meets this prong.
Under the second, alternate prong of the Davis/Barrett test, a state drug offense qualifies as a "drug trafficking crime," and thus as an aggravated felony (regardless of state classification as a felony or misdemeanor) if it is analogous to a felony under the federal statutes enumerated in 18 U.S.C. § 924(c)(2) ("federal drug laws"). Matter of Davis, supra; Matter of Barrett, supra. In other words, as discussed below, a state drug offense qualifies as a "drug trafficking crime" if it is punishable as a felony under the federal drug laws.
However, the Service urges us to consider the respondent's Louisiana drug offense a "drug trafficking crime" under 8 U.S.C. § 924(c)(2), and therefore an "aggravated felony" under our immigration laws, solely because of its classification as a felony under Louisiana state law. Effectively, we are asked to modify or expand the second prong of the Davis/Barrett test to include an offense that is punishable as a felony under state law, but not under federal law. For the reasons set forth below, we decline to do this. We hold that a federal, not a state, definition applies to determine whether or not a state drug offense is a "felony" within the meaning of 18 U.S.C. § 924(c)(2), and therefore is an "aggravated felony" under section 101(a)(43) of the Act.
The Service agrees that a drug-related "aggravated felony" is defined under section 101(a)(43) of the Act to include any "drug trafficking crime" as defined in 18...
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