BIA: Transportation of Narcotics is Not an Aggravated Felony

In a surprising unpublished decision the Board of Immigration Appeals, which handles administrative appeals from deportation orders, held that transportation of cocaine under California law is not an aggravated felony.    Originally, the immigration judge ordered the Respondent deported based upon a finding that his conviction for transporting more than 4 kilograms of cocaine under California Health and Safety Code § 11352(a) was an aggravated felony, because it was “related to trafficking.”   

Under the current immigration code, an “offense related to trafficking in a controlled substance” is classified as an “aggravated felony,” carrying severe immigration consequences, usually resulting in virtually automatic deportation, even for long-term legal permanent residents.  See 8 U.S.C. § 1101(a) (43)

It would seem therefore, that transporting a large quantity of cocaine was “related to trafficking.”  However, the BIA holds that is not necessarily so.  See 8 U.S.C. § 1101(a) (43)

Because the broad California Health and Safety Code § 11352 (a) includes conduct that is not necessarily “trafficking” (for example, transporting narcotics in small amounts etc.), a conviction under Health & Safety Code § 11352 (a) is not “categorically” a trafficking offense and therefore not an aggravated felony.

The Respondent, a legal resident of the United States for more than ten years is now able to apply for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1 229b(a).

Recommended Articles

sealed document
Sealing Records Under Arizona’s New Law

Criminal records of arrests, even where charges are dismissed, and almost all convictions, even for minor offenses, can and do follow a person for years.

Pima County Preliminary Hearings and Grand Jury Indictments Felony Criminal Procedure

A preliminary hearing is the ostensible first stop in the system of supposed checks and balances embedded in the concept of criminal prosecution and justice

man behind jail cell
You’ve Been Arrested for a Felony in Pima County: What Happens Next?

You or someone you care about was just arrested for a felony in Pima County. This article will give you an overview of what to expect

The Prosecutor Failed to Give Me Evidence: Three Things You Can Do

Three things you can do where the prosecutor has failed to timely disclose important evidence related to your case.

article feature image
Domestic Violence for Professionals – Part III – Asserting Victims’ Rights to Influence Outcome

Today we’ll talk about how victims may also influence the final outcomes of domestic violence criminal proceedings in Arizona, particularly in relation to a putative offer of “diversion.”

Michael Harwin

About Michael Harwin

Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books