Matter of L---- G----

• Decision Date: 03 November 1994
• Docket Number: A-26025339,Interim Decision Number 3234
• Parties: MATTER OF L---- G---- In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 905

MATTER OF L---- G----

In Deportation Proceedings

Interim Decision Number 3234

A-26025339

Board of Immigration Appeals.

Decided by Board November 3, 1994.

(1) A single conviction under 21 U.S.C. § 844(a) (Supp. V 1993) for simple possession of more than 5 grams of a mixture or substance which contains cocaine base is a conviction for an aggravated felony within the meaning of section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993), as is a state conviction analogous to such federal conviction.

(2) A single conviction for possession of a controlled substance under section 40:967F(2) of the Louisiana Revised Statutes is not analogous to a conviction under the single offense felony provision of 21 U.S.C. § 844(a) relating to possession of "cocaine base" where the Louisiana conviction involved possession of "cocaine," not cocaine base.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)]—Convicted of aggravated felony

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)]—Convicted of controlled substance violation

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF SERVICE: Craig A. Harlow General Attorney

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes, Alternate Board Member

In a decision dated June 8, 1994, an immigration judge found the respondent deportable as charged, determined that he was ineligible 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) (1988 & Supp. V 1993), and ordered him deported to Cuba. The respondent has appealed from that decision.¹ The appeal will be sustained and the record will be remanded for further proceedings before the immigration judge.

The record reflects that on November 13, 1990, the respondent was convicted in the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana, of the offense of possession 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. By Order to Show Cause and Notice of Hearing (Form I-221) dated February 24, 1994, the respondent was placed in deportation proceedings and 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) (Supp. V 1993), as an alien who has been convicted of an aggravated felony and a controlled substance violation.

At his deportation hearing, the respondent, a native and citizen of Cuba, admitted the factual allegations set forth in the Order to Show Cause, but citing "political problems" in his native country, indicated a desire to apply for asylum and withholding of deportation. Without explaining the rationale for his conclusion, the immigration judge determined that the respondent was deportable as charged and ineligible, as an alien who has been convicted of an aggravated felony, for the relief sought under sections 208 and 243(h) of the Act.² As we find that the record does not establish that the respondent has been convicted of an aggravated felony within the meaning of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993), we shall remand the case to the immigration judge for further proceedings.

Congress included within the definition of the term "aggravated felony" under section 101(a)(43) of the Act "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." Under 18 U.S.C. § 924(c)(2) (1988), 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.)."

In Matter of Davis, 20 I&N Dec. 536 (BIA 1992), this Board observed, in dicta, that a single conviction for simple possession of a controlled substance could constitute a conviction for an aggravated felony. The example we cited was a conviction under 21 U.S.C. § 844(a) (Supp. V 1993), a codification of the Controlled Substances Act. Under that statute, a defendant with no prior drug convictions who is convicted of simple possession of more than 5 grams of a mixture or substance which contains cocaine base is subject to a term of imprisonment of 5 to 20 years.³ Matter of Davis, supra, at 543 n.6. Inasmuch as the maximum term of imprisonment authorized by the statute exceeds 1 year, such offense is a felony. 18 U.S.C. § 3559 (1988); Matter of Davis, supra, at 543 n.6. As a felony under the Controlled Substances Act, this offense is a "drug trafficking crime" within the ambit of 18 U.S.C. § 924(c)(2) and, therefore, "illicit trafficking" in a controlled substance and an aggravated felony within the meaning of section 101(a)(43) of the Act. Pursuant to Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), a state conviction analogous to a federal conviction under the single offense felony provision of 21 U.S.C. § 844(a) would also constitute a conviction for an aggravated felony. Matter of Davis, supra, at 543.

A review of the Louisiana statute under which the respondent was convicted indicates that the conviction was for simple possession of a controlled substance.⁴ The offense underlying the respondent's conviction is a felony under Louisiana law by reason of the sentence imposed. See La. Code Crim. Proc. Ann. art. 933(3) (West 1984) ("`Felony' means an offense that may be punished by death or by imprisonment at hard labor."). The record does not reflect that the respondent has any other convictions. However, notwithstanding the similarities between the respondent's conviction and a conviction under the single offense felony provision of 21 U.S.C. § 844(a), the evidence in the instant case does not support a conclusion that the respondent has been convicted of an aggravated felony inasmuch as he stands convicted of possession of a quantity of cocaine and the provision, by its terms, applies only to possession of "cocaine base," not "cocaine."

The penalty provisions of the Controlled Substances Act, codified at 21 U.S.C. § 841(b) (1988 & Supp. V 1993), and the corresponding Sentencing Guidelines, 18 U.S.C.A. app. 4 § 2D1.1 (West Supp. 1994) ("Sentencing Guidelines"), impose substantially more severe penalties for offenses involving mixtures or substances containing "cocaine base" than for offenses involving equal amounts of mixtures or substances containing "cocaine." For example, 21 U.S.C. § 841(b)(1)(A)(iii) specifies a minimum 10-year prison term for distributing 50 grams of a mixture containing cocaine base, whereas section 841(b)(1)(A)(ii)(II) requires 100 times that quantity, or 5 kilograms, of a mixture containing cocaine to trigger the same minimum 10-year sentence. See, e.g., United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989). Congressional hearing statements indicate that Congress targeted cocaine base because it "(1) has a more rapid onset of action, (2) is more potent, (3) is more highly addictive, (4) is less expensive than cocaine powder, and (5) has widespread availability." United States v. Thurmond, 7 F.3d 947, 952-53 (10th Cir. 1993) (citing statements from congressional hearings), cert. denied, 114 S. Ct. 1311 (1994); see also United States v. Singleterry, 29 F.3d 733, 740 (1st Cir.) cert. denied, 115 S. Ct. 647 (1994); United States v. Byse, 28 F.3d 1165, 1169 (11th Cir. 1994); United States v. Stevens, 19 F.3d 93, 97 (2d Cir. 1994); United States v. Jones, 979 F.2d 317, 319 (3d Cir. 1992); United States v. Lawrence, 951 F.2d 751, 754-56 (7th. Cir. 1991); United States v. Shaw, 936 F.2d 412, 415-16 (9th Cir. 1991); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991), cert denied, 502 U.S. 1038, (1992); United States v. Levy, 904 F.2d 1026, 1032 (6th Cir. 1990), cert. denied sub nom. Black v. United States, 498 U.S. 1091 (1991); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990); United States v. Buckner, 894 F.2d 975, 978-79 (8th Cir. 1990); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989). We note that the distinction between the different forms of cocaine has repeatedly withstood constitutional challenge on various grounds. See, e.g., United States v. Singleterry, supra, at 740-41; United States v. Byse, supra, at 1167-71; United States v. Stevens, supra, at 96-97; United States v. Thurmond, supra, at 951-53; United States v. Bynum, 3 F.3d 769 (4th Cir. 1993), cert. denied, 114 S. Ct. 1105 (1994); United States v. Williams, 982 F.2d 1209, 1213 (8th Cir. 1992); United States v. Jones, 979 F.2d 317, 318-20 (3d Cir. 1992); United States v. Lawrence, supra; United States v. Galloway, 951 F.2d 64, 65-66 (5th Cir. 1992) (per curiam); United States v. Shaw, supra, at 416; United States v. Thomas, 932 F.2d at 1089-90; United States v. Levy, supra; United States v. Cyrus, supra.

The term "cocaine base" is not defined in the Controlled Substances Act. However, effective November 1, 1993, the Sentencing Guidelines were amended by the United States Sentencing Commission to provide: "`Cocaine base,' for the purposes of this guideline, means `crack.' `Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." Sentencing Guidelines, § 2D1.1(c); see also United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994). In amending the Sentencing Guidelines, the Sentencing Commission addressed an intercircuit conflict with respect to the scope of the term "cocaine base." Compare, e.g., United States v. Shaw, supra (finding that cocaine base means only...