# Interim Decision #3181

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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
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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

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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
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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.

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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

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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."
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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).

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Afcfb8b91cc6cdd4e. Public record. Not legal advice.