Interim Decision #3181

Interim Decision #3181

MATTER OF DAVIS

In Deportation Proceedings

A-39187077

Decided by Board May 28, 1992

(1) The ,hrase "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

Natio iality Act, 8 U.S.C. § 1 3 01(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 airy controlled substance," i.e., any unlawful trading or

dealin in any controlled substance, is an aggravated felony without regard to the

analyt is set forth in Matter of Barrett, 20 I&N Dec. 171 (BIA 1990).

(3) In ac dition, because the phrase "any illicit trafficking in any controlled substance" in

sectio 101(a)(43) of the Act includes any "drug trafficking crime" as defined in 18

U.S.0 § 924(c)(2) (1988), art offense involving a controlled substance which is not

desigr ated as a felony under the law of the rendering jurisdiction, and/or which does

not cc astitute "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.0 § 924(c)(2) as addressed in Matter of Barrett, supra. Matter of Barrett, supra,

clarifi .d.

(4) The ietermination whether a conviction for "any attempt or conspiracy" to commit

a drill - related crime constitutes "any illicit trafficking in any coati -oiled substance"

withir the meaning of section 1 01(a)(43) of the Act must be based on the drug-related

substr ative offense underlying the attempt or conspiracy.

CHARC c:

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

Sec. 241(a)(11) U.S.C. § 1251(8)(11)1 — Convicted of controlled

substance violation

ON BEHALF OF SERVICE:

George W. Maugans

ON BE IALF OF RESPONDENT:

Pro

General Attorney

BY: hd ilhollan, Chairman; Duane, Morris, Vacca, and Heilman, Board Members

In a decision dated July 19, 1990, the immigration judge found that

G24

Interim Decision #3181

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.

§ 1 I 01(a)(43) (1988), and that the respondent was therefore not

deportable as charged under section 241(a)(4)(B) of the Act, 8

1251(a)(4)(B) (1988).' The immigration judge did, however, find the

respondent deportable under section 241(a)(11) of the Act 2 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)(4XB) 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 1 -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); MedranoVillatoro v. INS, 866 F.2d 132 (5th Cir. 1989); Lozada v. INS, 857 F.2d

10 (lst Cir. 1988); Martinez-Zelaya v. INS, 841 F.2d 294 (9th Cir.

'This ground of deportation has been revised and redesignated as section

241(a)(2XA)(iii) of the Act, 8 § 1251(a)(2)(A)(iii) (Supp. U 1990), by section

602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5080, but

that amendment does not apply to deportation proceedings for which notice has been

provided to the alien before March 1. 1991. See section 602(d) of the Immigration Act of

1990, 104 Stat. at 5082.

2 Revised and redesignated as section 241(a)(2XB)(i) of the Act by section 602(a) of the

Immigration Act of 1990, 104 Stat. at 5080.

537

Interim Decision #3181

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(0111 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 111, 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 drugrelated "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's, Matter of Lennon, 15 I&N

538

Interim Decision #3181

Dec. 9 (BIA 1974); Matter of McNaughton, 16 I&N Dec. 569, 572 (BIA

1978), affil, 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.0 § 924(c)(2). The specific federal provision proposed by the

Service as the appropriate analogy is 21 U.S.C. § 841(aX1) (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(cX2) 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

offense) for which the term of imprisonment imposed (regardless of any suspension

of such imprisonment) is at least 5 years, or any attempt or conspiracy to commit any

such act. 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.

Section 101(aX43) of the Act, 8 USX. § 1101(0(43) (Supp. II 1990)

(emphasis added). See section 501 of the Immigration Act of 1990, 104

Stat. at 5048, as corrected by section 306(a)(1) of the Miscellaneous

539

Interim Decision #3181

and Technical Immigration and Naturalization Amendments of 1991,

Pub. L. No. 102-232, 105 Stat. 1733, 1751 (enacted Dec. 12, 1991).

The amendments to section 101(a)(43) by section 501 of the Immigration Act of 1990 apply to offenses committed on or after November

29, 1990, except that the amendments underlined in the above-quoted

statute are effective as if included in the original definition of

"aggravated felony " added by section 7342 of the Anti-Drug Abuse

Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4469, effective

November 18, 1988. See section 501(b) of the Immigration Act of

1990, 104 Stat. at 5048.

In all cases involving statutory construction, the starting point must

be the language employed by Congress, and it is assumed that the

legislative purpose is expressed by the ordinary meaning of the words

used. INS v. Cardoza Fonseca, 480 U.S. 421, 431 (1987); INS v.

Phinpathya, 464 U.S. 183, 189 (1984).

The wording of section 101(a)(43), as amended, specifies that the

phrase "any illicit trafficking," as used to define a drug-related

"aggravated felony," includes, at a minimum, "any drug trafficking

crime" as defined in 18 U.S.C. § 924(c)(2). The amended definition

retains its reference to "any attempt or conspiracy to commit any such

act." Moreover, the amendment explicitly added that the term

"aggravated felony" applies to "offenses described" in the first

sentence of section 101(a)(43), "whether in violation of Federal or

State law," in effect codifying the holding in Barrett, 3 or "in violation

of foreign law for which the term of imprisonment was completed

within the previous 15 years." Section 101(a)(43) of the Act, as.

amended by section 501 of the Immigration Act of 1990, 104 Stat. at

5048.

The phrase "illicit trafficking," as it relates to controlled substances

in section 101(a)(43) of the Immigration and Nationality Act, is not

defined in the Controlled Substances Act, the Controlled Substances

Import and Export Act, the Maritime Drug Law Enforcement Act, or

in section 101 of the Immigration and Nationality Act. Nor is "illicit

trafficking" as it refers to firearms and destructive devices in section

101(a)(43) of the Act defined in 18 U.S.C. § 921. The terms "illicit

trafficker" and "illicit trafficking" do appear in section 212(a)(23) of

-

3 See S. Rep. No. 55, 101st Cong, 2d Sess. (1990); 136 Cong. Rec. S17,106, S17,117

(daily ed. Oct. 26, 1990) (the criminal alien amendments included as part of the

Immigration Act of 1990 "[e]xtend the definition of aggravated felony to include aliens

convicted of like State crimes, codifying a recent ruling of the Immigration Board of

Appeals—); 136 Cong. Rec. 517,741 (daily ed. Oct. 27, 1990); cf. 136 Cong. Rec. S6603

(daily ed_ May 18, 1990); H. Rep. No. 681, 101st Cong., 2d Sess., pt. 1, at 147 (1990),

reprinted in 1990 U.S.C.C.A.N. 6472, 6553.

540

Interim Decision #3181

the Act, 8 U.S.C. § 1182(a)(23) (1988),4 in reference to controlled

substances.

Black's Law Dictionary defines "traffic" as "[c]ommerce; trade; sale

or exchange of merchandise, bills, money, and the like. The passing of

goods or commodities from one person to another for an equivalent in

goods or money." Black's Law Dictionary, 1340 (5th ed. 1979).

"Trafficking" is in turn defined as: "Trading or dealing in certain

goods and commonly used in connection with illegal narcotic sales."

Id. Essential to the term in this sense is its business or merchant

nature, the trading or dealing of goods, although only a minimal degree

of involvement may be sufficient under the precedents of this Board to

characterize an activity as "trafficking" or a participant as a "trafficker." See Matter of Roberts, 20 I&N Dec. 294 (BIA 1990); Matter of

5 I&N Dec. 190 (BIA 1953).

"Illicit" is defined as "not permitted or allowed; prohibited;

unlawful; as an illicit trade." Black's Law Dictionary, supra, at 673.

Giving effect to this plain meaning, the use of "illicit" in section

101(a)(43) of the Immigration and Nationality Act simply refers to the

illegality of the trafficking activity. C f Bassett v. United States INS,

581 F.2d 1385 (10th Cir. 1978).

Thus, we conclude that a drug-related aggravated felony includes

,

any state, federal, or qualified foreign felony conviction involving the

unlawful trading or dealing of any controlled substance as defined in

section 102 of the Controlled Substances Act. Cf. Matter of De La

Cruz, 20 I&N Dec. 346 (BIA 1991). If the offense satisfies this test, no

further analysis of the type contemplated in Barrett is required.

Conversely, we would not conclude, based solely on the common

definitions of "traffic" or "trafficking," and considering that the

ultimate term in question is "aggravated felony," that an offense that is

not a felony and/or an offense which lacks a sufficient nexus to the

trade or dealing of controlled substances constitutes "illicit trafficking" in a controlled substance within the meaning of section 10l (a)(43)

of the Act. The offense of simple possession would appear to be one

example of a drug-related offense not amounting to the common

definition of "illicit trafficking." 5

4 Revised and redesignated as section 212(aX2)(C) of the Act, by section 601(a) of the

Immigration Act of 1990, 104 Stat. at 5067.

5 This interpretation is consistent with our cases discussing the term "illicit trafficking" as it relates to controlled substances in section 212(a)(23) of the Act. For example,

in these cases we have noted an exception to a finding of trafficking where the evidence

establishes that the illegal substance was intended for personal use as distinguished from

intent "to be used in `traffick.'" Matter of Rico, 16 I&N Dec. 181, 186 (BIA 1977).

Compare Matter of McDonald and Brewster, 15 I&N Dec. 203 (BIA 1975) (aliens who

entered United States in possession of six marihuana cigarettes brought for personal use

541

Interim Decision #3181

However, because Congress has defined "illicit trafficking" in

controlled substances as including any "drug trafficking crime" as

defined in 18 U.S.C. § 924(c)(2), certain drug-related offenses not

designated as felonies under the law of the rendering jurisdiction,

and/or not obviously constituting "illicit trafficking" as commonly

defined, might nonetheless be "drug trafficking crimes" and therefore

constitute "illicit trafficking" in controlled substances within the

meaning of section 101(a)(43).

A "drug trafficking crime," again, is "any felony punishable under"

the Controlled Substances Act, the Controlled Substances Import and

Export Act, or the Maritime Drug Law Enforcement Act_ 18 U.S.C.

§ 924(c)(2); see also Matter of arrett, supra. In Barrett we found that

the defmition of "drug trafficking crime" for purposes of determining

a drug-related "aggravated felony" included state offenses "analogous"

to offenses under the three federal statutes in 18 U.S.C. § 924(c)(2).

We conclude that the analysis in Barrett is consistent with the 1990

amendment of section 101(a)(43) to include offenses "described" as

"drug trafficking crimes," and that the comparison called for in

Barrett will continue to apply in certain cases in determining "drug

trafficking crimes." Moreover, in addition to state and federal

offenses, the comparison in Barrett may also be appropriate for foreign

offenses "for which the term of imprisonment was completed within

the previous 15 years." Section 101(a)(43) of the Act, 8 U.S.C.

§ 1101(a)(43) (Supp. II 1990).

In applying Matter of Barrett in this case, the respondent argued at

the hearing that the phrase "any felony punishable" in 18 U.S.C.

§ 924(c)(2) indicated that only state convictions which were also

characterized under state law as felonies could be "drug trafficking

crimes." Under this analysis identical drug offenses in two different

states which are analogous to an offense under the Controlled

found not to be illicit traffickers) with Matter of Favela, 16 I&N Dec. 753 (BIA 1979)

(conscious participation in attempt to smuggle marihuana; sufficient quantity of

marihuana to infer that applicant was a trafficker); Matter of R-H-, 7 I&N Dec. 675 (BIA

1958) (conscious participation in drug trafficking; alien admitted delivering 15-20

dealer-supplied marihuana cigarettes on at least three different occasions to dealer's

customers) and Matter ofP-, supra (alien admitted intent to resell narcotics purchased in

Italy and smuggled into United States). Of course, as distinguished from section

212(a)(23) of the Act, in the context of determining drug-related "illicit trafficking" for

purposes of finding an "aggravated felony," there will first be a conviction. The

Immigration and Nationality Act consistently attaches liability to the alien only for the

conviction of an aggravated felony. See, e.g., sections 241(a)(4)(3), 242(a)(2) of the Act. It

is the elements of the drug conviction, or as noted infra, of the underlying offense in the

case of an attempt or conspiracy conviction, and not inferences drawn from the

surrounding circumstances, which determine whether the conviction is for "illicit

trafficking" for purposes of determining a drug-related "aggravated felony."

542

Interim Decision #3181

Substances Act, but are treated by one state as a felony and by the

second as a misdemeanor, would result in a finding of "drug

trafficking crime" for the offense of the first state and not for the

second. We do not find that this result is required by the language of

18 U.S.C. § 924(e)(2) or was intended by Congress in referring to that

section. Specifically, we note that the word "felony" in 18 U.S.C.

§ 924(c)(2), as interpreted in federal criminal law, clearly refers to

felony offenses under the three statutes enumerated there. See, e.g.,

United States v. Contreras, 895 F.2d 1241, 1244 (9th Cir. 1990). We

therefore clarify our holding in Matter of Barrett to specify that for a

finding of "drug trafficking crime" the alien's offense must be a felony

offense under one of the three statutes listed in 18 U.S.C. § 924(c)(2),

or it must be analogous to a felony offense under one of the three

statutes in section 924(c)(2). A felony under federal criminal law is any

offense where the maximum term of imprisonment authorized exceeds

1 year. 18 U.S.C. § 3559 (1988).

Thus, as noted above, where a state, federal, or qualified foreign

conviction is a felony and involves unlawful "trafficking," as commonly defined, in any controlled substance as defined in section 102 of the

Controlled Substances Act, a finding of aggravated felony is proper,

and no analysis under Barrett is required. However, if the offense is

not designated as a felony it may nonetheless be "a drug trafficking

crime" (and therefore "illicit trafficking" and an "aggravated felony")

if it is analogous to an offense punishable under one of the federal acts

specified in 18 U.S.C. § 924(c)(2), and the offense to which it is

analogous is a "felony" under federal law.

Similarly, certain offenses which do not obviously meet the

common definitions of "trafficking" might nonetheless be "drug

trafficking crimes" within the meaning of 18 U.S.C. § 924(c)(2) and

therefore constitute "illicit trafficking" in controlled substances within

the meaning of section 101(a)(43). To return to the example of

possession, 21 U.S.C. § 844(a) (Supp. II 1990) indicates that certain

possessory offenses are punishable by terms of imprisonment exceeding 1 year and thus are felonies. 6 Consequently, any federal conviction

under 21 U.S.C. § 844(a) which is a felony, or pursuant to Barrett any

federal, state, , or specified foreign conviction analogous to such a

6 For example, a conviction under section 844(a) for unlawful possession of a

controlled substance, where the offense is committed after a prior drug conviction, is

punishable by a term of imprisonment of up to 2 years. Similarly, a first-time conviction

under section 844(a) for the possession of a mixture or substance which contains cocaine

base and the amount of the mixture or substance exceeds 5 grams is punishable by

imprisonment of not less than 5 years and not more than 20 years. 21 U.S.C. § 844(0

(Supp. II 1990). Because the maximum term of imprisonment authorized for these

convictions exceeds 1 year they are felonies. 18 U.S.C. § 3559 (1988).

543

Interim Decision #3181

conviction, is a "drug trafficking crime" under 18 U.S.C. § 924(c)(2),

"illicit trafficking" in a controlled substance within the meaning of

section 101(a)(43) of the Act, and, therefore, an "aggravated felony."

In this case we have a state conspiracy conviction defined under the

state's common law as a misdemeanor. With respect to a conviction

for "any attempt or conspiracy" to commit a drug crime, we find that

the determination whether the conviction is "any illicit trafficking"

within the meaning of section 101(a)(43) must be based on the

substantive offense underlying the attempt or conspiracy. The definition of "aggravated felony" in section 101(a)(43) of the Act, as

amended, relates generally to aliens convicted of murder, drug

trafficking, firearms trafficking, offenses described in 18 U.S.C.

§ 1956, or any crime of violence as defined in 18 U.S.C. § 16 (except

purely political offenses) "or any attempt or conspiracy to commit any

such act, committed within the United States." Section 101(a)(43) of

the Act (emphasis added). We find that "any such act" refers to each of

the five general categories of offenses comprising the definition of

"aggravated felony." Our decision in Barrett focused only on the now-

amended second of these categories, that is, the definition of "aggravated felony" based on "any drug trafficking crime" as defined in 18

U.S.C. § 924(c)(2). Resolution of the issue in Barrett (whether a state

conviction may be a "drug trafficking crime") centered on the phrase

"punishable under" in 18 U.S.C. § 924(c)(2). The analogy called for in

Barrett resulted from the reading of "punishable under" and in no way

focused on the independent "any attempt or conspiracy" phrase in

section 10 I (a)(43). The phrase "any attempt or conspiracy" is not

defined or limited by reference to any federal provision or definition.

(Emphasis added). It can clearly arise as either a state or foreign

provision (i.e., attempted murder) or a federal provision (i.e., conspiracy to distribute a controlled substance in violation of 21 U.S.C.

§§ 846 and 841(a)(1)) within the context of section 101(a)(43) of the

Act. The Service correctly reads Barrett as requiring a comparison

between the elements of the underlying substantive drug offense and a

federal drug provision referenced in 18 U.S.C. § 924(c)(2), and not

between the state/foreign and the federal attempt or conspiracy

provisions.

We note that this is consistent with the way in which attempt and

conspiracy offenses have regularly been treated under section 241(a)(4)

of the Act,' the provision to which the aggravated felony deportation

ground was originally added. It is well established concerning crimes

involving moral turpitude that "[w]here the underlying, substantive

'Revised and redesignated as section 241(a)(2)(A)(i) of the Act, by section 602(a) of

the Immigration Act of 1990, 104 Stat. at 5077.

544

Interim Decision #3181

offense is a crime involving moral turpitude ... conspiracy to commit

such an offense is also a crime involving moral turpitude." McNaughton v. INS, supra, at 459; see also Guarneri v. Kessler, 98 F.2d 580 (5th

Cir.), cert. denied, 305 U.S. 648 (1938); Mercer v. Lence, 96 F.2d 122

(10th Cir.), cert. denied, 305 U.S. 611 (1938); Matter of Goldeshtein, 20

I&N Dec. 382 (BIA 1991), rev'd on other grounds, 8 F.3d 645 (9th Cir.

1993); Matter- of G-, 7 I&N Dec. 114, 115 (BIA 1956). Likewise,

"Where is no distinction for immigration purposes in respect to moral

turpitude, between the commission of the substantive crime and the

attempt to commit it." Matter of Awaijane, 14 I&N Dec. 117, 118 19

(BIA 1972) (citing United States ex rel. Meyer v. Day, 54 F.2d 336 (2d

Cir. 1931)).

In sum, in cases based on an attempt or conspiracy conviction,

where the underlying felony offense involves unlawful trading or

dealing in controlled substances, i.e. "illicit trafficking" as commonly

defined, no further comparison pursuant to Barrett is required for a

finding that the conviction is for an aggravated felony. Where the

underlying offense is not a felony and/or is not clearly "illicit

trafficking" as commonly defined, the conviction may nonetheless still

be "illicit trafficking" within the meaning of section 101(a)(43) of the

Act if the underlying offense is a "drug trafficking crime" within the

-

meaning of 18 U.S.C. § 924(0(2), as interpreted in Barrett_

In the instant case we have reviewed the record de novo and

conclude that the respondent has been convicted of an aggravated

felony as defined in section 101(a)(43) of the Act. The respondent was

convicted on July 19, 19 89, in the Circuit Court for Montgomery

County, Maryland, of conspiracy to distribute a controlled substance

(cocaine) in violation of the common law of Maryland. His offense

involves a controlled substance as defined in section 102 of the

Controlled Substances Act. See 21 U.S.C. §§ 802(6), 812(c) Schedule

II(a)(4) (Supp. II 1990); 21 C.F.R. § 1308.12(b)(4) (1991); United

States v. Amid2ich, 396 F. Supp. 1140 (E.D. Wis. 1975). In conspiracy

cases we determine "illicit trafficking" based on the underlying

substantive offense. Unlawful distribution of a controlled substance

clearly concerns the unlawful trading or dealing of controlled substances. The underlying offense is a felony. See Md. Ann. Code art. 27,

§§ 286(a)(1), (b), 279 (1991). 8 Accordingly, we conclude that the

8 The Maryland Annotated Code provides as follows:

Unlawful manufacture, distribution, etc.; counterfeiting, etc.; manufacture, possession,

etc., of certain equipment for illegal use; keeping common nuisance.

(a) Exccpt as authorized by this subheading, it is unlawful for any person.

(1) To manufacture, distribute, or dispense, or to possess a controlled

dangerous substance in sufficient quantity to reasonably indicate under all

545

Interim Decision #3181

respondent's conviction is for "illicit trafficking" within the meaning

of section 101(a)(43) of the Act, and that he is therefore an alien

convicted of an "aggravated felony" and deportable as such under

section 241(a)(4)(B) of the Act. The Service's appeal with respect to

deportability under section 241(a)(4)(B) of the Act is sustained.

ORDER: The respondent's appeal is summarily dismissed

pursuant to 8 C.F.R. § 3.1(d)(1-a)(i)(A).

The appeal of the Immigration and

FURTHER ORDER:

Naturalization Service is sustained.

The respondent is ordered deported to

FURTHER ORDER:

the Dominican Republic based on both charges contained in the Order

to Show Cause.

circumstances an intent to manufacture, distribute, or dispense, a controlled

dangerous substance ....

(b) Any person who violates any of the provisions of subsection (a) of this section

with respect to:

(1) A substance classified in Schedules I or II which is a narcotic drug is guilty

of a felony and is subject to imprisonment for not more than 20 years, or a fine of

not more than $25,000, or both.

Md. Ann. Code art. 27, §§ 286(a)(1), (b) (1991).

Cocaine is included in Schedule II of Maryland's controlled dangerous substance list as

follows:

Coca leaves, except coca leaves and extracts of coca leaves from which cocaine,

ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine, its

salts, optical and geometric isomers, and salts of isomers; ecgonine, its derivatives,

their salts, isomers, and salts or isomers; or any compound, mixture, or preparation

which contains any quantity of any of the substances referred to in this paragraph.

Md. Ann. Code art. 27, § 279(b)a.4. (1991).

546