Matter of Davis

• Decision Date: 28 May 1992
• Docket Number: A-39187077.,Interim Decision Number 3181
• Citation: 20 I&N Dec. 536
• Parties: MATTER OF DAVIS. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 536

MATTER OF DAVIS.

In Deportation Proceedings.

Interim Decision Number 3181

A-39187077.

Board of Immigration Appeals.

Decided by Board May 28, 1992.

(1) The phrase "any illicit trafficking in any controlled substance," as used to specify a drug-related "aggravated felony" in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), may be commonly defined as any unlawful trading or dealing in any controlled substance.

(2) Any felony drug-related state, federal, or qualified foreign offense described by the words "illicit trafficking in any controlled substance," i.e., any unlawful trading or dealing in any controlled substance, is an aggravated felony without regard to the analysis set forth in Matter of Barrett, 20 I&N Dec. 171 (BIA 1990).

(3) In addition, because the phrase "any illicit trafficking in any controlled substance" in section 101(a)(43) of the Act includes any "drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988), an offense involving a controlled substance which is not designated as a felony under the law of the rendering jurisdiction, and/or which does not constitute "illicit trafficking" as commonly defined, might nonetheless be a "drug trafficking crime" (and therefore qualify as "illicit trafficking" and an "aggravated felony") if it is analogous to a felony offense under the statutes enumerated in 18 U.S.C. § 924(c)(2) as addressed in Matter of Barrett, supra. Matter of Barrett, supra, clarified.

(4) The determination whether a conviction for "any attempt or conspiracy" to commit a drug-related crime constitutes "any illicit trafficking in any controlled substance" within the meaning of section 101(a)(43) of the Act must be based on the drug-related substantive offense underlying the attempt or conspiracy.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)] — Convicted of aggravated felony

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)] — Convicted of controlled substance violation

ON BEHALF OF RESPONDENT: Pro se.

ON BEHALF OF SERVICE: George W. Maugans General Attorney.

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated July 19, 1990, the immigration judge found that the respondent's state conviction for conspiracy to distribute a controlled substance was not an aggravated felony within the meaning of section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1988), and that the respondent was therefore not deportable as charged under section 241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988).¹ The immigration judge did, however, find the respondent deportable under section 241(a)(11) of the Act² for conviction of a controlled substance violation and ordered him deported to the Dominican Republic. The respondent and the Immigration and Naturalization Service both filed appeals. The respondent's appeal will be summarily dismissed. The Service's appeal will be sustained and the respondent will be ordered deported pursuant to both section 241(a)(11) and section 241(a)(4)(B) of the Act. The requests for oral argument before this Board are denied. 8 C.F.R. § 3.1(e) (1992).

The respondent is a male native and citizen of the Dominican Republic who entered the United States as an immigrant on or about March 21, 1985. On July 19, 1989, the respondent was convicted in the Circuit Court for Montgomery County, Maryland, of conspiracy to distribute a controlled substance (cocaine), a misdemeanor, in violation of the common law of Maryland. The Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) charging the respondent with deportability under sections 241(a)(4)(B) and (11) of the Act was issued on September 1, 1989.

The immigration judge's finding of deportability under section 241(a)(11) of the Act has not been challenged by the respondent on appeal. In his Notice of Appeal (Form EOIR-26) the respondent states the following as the reasons for his appeal: "My very resistance Appeal on the Case Mostly is Because, I do have a Wife in the U.S. and I also do have a 3 1/2 months old baby. Those my reasons why to Appeal the Case thank you." These generalized statements contained in the Notice of Appeal fail to meaningfully identify the specific aspects of the immigration judge's order that the respondent considers to be incorrect. See Toquero v. INS, 956 F.2d 193 (9th Cir. 1992); Medrano-Villatoro v. INS, 866 F.2d 132 (5th Cir. 1989); Lozada v. INS, 857 F.2d 10 (1st Cir. 1988); Martinez-Zelaya v. INS, 841 F.2d 294 (9th Cir. 1988); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir. 1987); Townsend v. United States Dept. of Justice, INS, 799 F.2d 179 (5th Cir. 1986); Matter of Lodge, 19 I&N Dec. 500 (BIA 1987); Matter of Valencia, 19 I&N Dec. 354 (BIA 1986); Matter of Holguin, 13 I&N Dec. 423 (BIA 1969). The respondent's appeal will be summarily dismissed pursuant to 8 C.F.R. § 3.1(d)(1-a)(i)(A). See 57 Fed. Reg. 11,570 (Apr. 6, 1992).

The Service contends in support of its appeal that the immigration judge erred in not also finding the respondent deportable under section 241(a)(4)(B) of the Act as an alien convicted of an aggravated felony. The Service's appeal will be addressed even though the respondent has been found deportable and has not applied for relief because of the additional consequences attendant to a finding of deportability as an aggravated felon, see, e.g., section 212(a)(6)(B) of the Act, 8 U.S.C. § 1182(a)(6)(B) (Supp. II 1990) (consent to reapply for admission after deportation required for 20 years after deportation in the case of an alien convicted of an aggravated felony), and because of the significant legal questions presented.

The immigration judge's decision finding the respondent deportable under section 241(a)(11), but not under section 241(a)(4)(B), was rendered after the decision of this Board in Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), and before the definition of "aggravated felony" was amended by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (effective Nov. 29, 1990).

At the time this Board entered the decision in Matter of Barrett, supra, section 101(a)(43) of the Act defined the term "aggravated felony" as follows:

The term "aggravated felony" means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.

In 18 U.S.C. § 924(c)(2) (1988), the term "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.)."

In Barrett we concluded that the definition of "drug trafficking crime" in 18 U.S.C. § 924(c)(2), for purposes of determining a drug-related "aggravated felony" under section 101(a)(43) of the Immigration and Nationality Act, encompasses state convictions for crimes analogous to offenses under the three federal statutes enumerated in section 924(c)(2). The comparison or analogy called for in Barrett, is a matter of law, not fact. Matter of Barrett, supra, at 177-78; cf. Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), rev'g, Matter of Lennon, 15 I&N Dec. 9 (BIA 1974); Matter of McNaughton, 16 I&N Dec. 569, 572 (BIA 1978), aff'd, 612 F.2d 457 (9th Cir. 1980).

In applying Barrett in this case, the immigration judge found that the respondent's state conspiracy offense would qualify as an aggravated felony only upon proof that the elements of the state conspiracy provision are analogous to the elements of the conspiracy provision of the Controlled Substances Act (21 U.S.C. § 846). In a detailed comparison between the Maryland common law of conspiracy and 21 U.S.C. § 846, the immigration judge found that while proof of an overt act in furtherance of the conspiracy is required for a conviction under the federal provision as interpreted by the United States Court of Appeals for the Fourth Circuit, no overt act is required under Maryland law. Accordingly, he concluded that the state conviction was not sufficiently analogous to section 846 and was therefore not a "drug trafficking crime" nor, in turn, an "aggravated felony."

On appeal the Service's principal contention is that, pursuant to Barrett, the distribution offense underlying the respondent's conspiracy conviction (article 27, section 286(a)(1) of the Maryland Annotated Code), and not the state conspiracy conviction itself, must be compared to a felony provision in the federal statutes listed in 18 U.S.C. § 924(c)(2). The specific federal provision proposed by the Service as the appropriate analogy is 21 U.S.C. § 841(a)(1) (1988). In sum, the Service contends that any state conviction for a conspiracy to commit an underlying drug-related offense is an aggravated felony where the underlying drug-related offense is analogous to a felony provision under the federal statutes listed in 18 U.S.C. § 924(c)(2).

Subsequent to the decision of the immigration judge, the definition of aggravated felony at section 101(a)(43) of the Act was amended and now provides as follows:

The term "aggravated felony" means murder, 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, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, any offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments), or any crime of violence (as defined in section 16 of title 18, United States Code, not including a purely political...