AGGRAVATED FELONIES BIA CASE LAW Accessory After the Fact Matter of Batista, 21 I&N Dec. 955 (BIA 1997) (1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. §3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). (2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. §1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.” Alien Smuggling Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) An alien convicted of an offense described in section 275(a) of the Immigration and Nationality Act, 8 U.S.C. § 1325 (Supp. II 1996), is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act, 8U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996). Arson Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed. Matter of Palacios, 22 I&N Dec. 434 (BIA 1998) An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act, 8U.S.C. §1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony. Burglary Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (Burglary of a Vehicle) The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a “burglary offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(G) (Supp. IV 1998). Commercial Bribery Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010) The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006). Conspiracy Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators. (2) An alien who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense. Controlled Substances Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach. Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012). Matter of Flores, 26 I&N Dec. 155 (BIA 2013) The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed. Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) An alien convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified. Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) 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). Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) Absent

A conviction for selling a simulated controlled substance that was not actually a controlled substance is not an offense relating to a controlled substance under INA § 237(a)(2)(B)(i). Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010). INA § 237(a)(2)(B)(i) – Offense “Relating To” a Controlled Substance Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable. Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B). For NY Controlled Substance Convictions the sale of actual controlled substances may not be a crime related to a controlled substance. See U.S. v. Minter, No. 21-3102 (2d Cir. 2023).

18 U.S.C. §16. Crime of violence definedThe term “crime of violence” means- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 USC 16: Crime of violence defined A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. See INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). The first subsection of the crime of violence definition at 18 U.S.C. § 16(a) provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. The second subsection states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). In Sessions v. Dimaya SCOTUS issued a decision on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

The Second Circuit has found that NY defines narcotic in a way that is overbroad and includes substances that are not on the federally controlled substance schedules and therefore, under the categorical approach, are not controlled substance offenses. U.S. v. Minter, No. 21-3102 (2d Cir. 2023) The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA. The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.” NOTE: Reason to believe charges do not require a conviction. See reason to believe. NY Penal Law § 220.39: Criminal sale of a controlled substance in the third degree There are several offenses prohibiting selling drugs in the New York Penal Code. Most require that you sell or attempt to sell a minimum amount of specific types of drugs in order to be prosecuted. You will have committed the crime of criminal sale of a controlled substance in the third degree under New York Penal Code § 220.39 if you knowingly and unlawfully sell drugs as follows: In addition you could be prosecuted for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is under the age of 21, or you sell a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and you previously have been convicted of a drug offense.

SINGLE MARIJUANA OFFENSE EXCEPTION Exception for single conviction for marijuana under 30 grams. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006). For purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for ones own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; a respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception. See Matter of Davey, 26 I&N Dec. 37 (BIA 2012). Matter of Davey, 26 I&N Dec. 37 (BIA 2012) Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concluded that the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).