The Board of Immigration Appeals (BIA) has just overturned a May 6, 2008, order of an immigration judge that found an alien deportable under former sections 241(a)(2)(A)(iii), and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and(B)(i) (1994), as an alien convicted of an aggravated felony and a controlled substance violation.
In this specific case the alien is a native and citizen of El Salvador. He entered the United States without inspection on March 28, 1984, and was subsequently convicted on September 4, 1996, in the 185th District Court of Harris County, Texas of delivery by actual transfer of a simulated controlled substance (cocaine).
The BIA ruled that the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). See Matter of Fidel Antonio SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010)
The BIA reasoning was an alien’s State drug offense qualifies may only constitute an aggravated felony under the “illicit trafficking” clause if it is (1) a felony under the law of the convicting sovereign that (2) involved “unlawful trading or dealing” in (3) a Federally controlled substance.
Therefore, because simulated cocaine is not a Federally controlled substance, the alien's conviction does not constitute an “illicit trafficking” offense, and therefore is not an aggravated felony.
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