Interim Decision #3234
MATTER OF L-G-
In Deportation Proceedings
A-26025339
Decided by Board November 3, 1994
(1) A single conviction under 21 U.S.C. § 844(a) (Supp. V 1993) for simple possession of
more than 5 grams of a mixture or substance which contains cocaine base is a
conviction for an aggravated felony within the meaning of section 101(a)(43) of the
Immigration and Nationality Act, 8 U.S.C. § 1I01(a)(43) (Supp. V 1993), as is a state
conviction analogous to such federal conviction.
(2) A single conviction for possession of a controlled substance under section 40:967F(2)
of the Louisiana Roviscd Statutes is not analogous to a conviction under the single
offense felony provision of
21 U.S.C. § 844(a) relating to possession of "cocaine base"
where the Louisiana conviction involved possession of "cocaine," not cocaine base.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [
8 U.S.C. § 1251(a)(2)(A)(iii)J—Convicted of
aggravated felony
Sec. 241(a)(2)(13)(i) [8 U.S.C. § 1251(a)(2)(B)(i)j—Convicted of
controlled substance violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro in Craig A. Harlow
General Attorney
BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
Alternate Board Member
In a decision dated June 8, 1994, an immigration judge found the
respondent deportable as charged, determined that he was ineligible
for asylum and withholding of deportation under sections 208 and
' 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and
1253(h) (1988 & Supp. V 1993), and ordered him deported to Cuba.
The respondent has appealed from that decision.' The appeal will be
'The respondent requests on appeal that the "detainer lodged against [him] be
removed." However, we are without jurisdiction to review this matter. See generally
Matter of Sanchez,
20 I&N Dec. 223 (BIA 1990).
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Interim Decision #3234
sustained and the record will be remanded for further proceedings
before the immigration judge.
The record reflects that on November 13, 1990, the respondent was
convicted in the 22nd Judicial. District Court, Parish of St. Tammany,
State of Louisiana, of the offense of possession in excess of 400 grams
of a Schedule II, Controlled Dangerous Substance, to wit, cocaine, in
violation of section 40:967F(2) of the Louisiana. Revised Statutes. As a
result of that conviction, he was sentenced to serve a term of 20 years
at hard labor. By Order to Show Cause and Notice of Hearing (Form I-
221) dated February 24, 1994, the respondent was placed in deportation proceedings and charged with deportability under sections
241(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii)
and (B)(i) (Supp. V 1993), as an alien who has been convicted of an
aggravated felony and a controlled substance violation.
At his deportation hearing, the respondent, a native and citizen of
Cuba, admitted the factual allegations set forth in the Order to Show
Cause, but citing "political problems" in his native country, indicated
a desire to apply for asylum and withholding of deportation. Without
explaining the rationale for his conclusion, the immigration judge
determined that the respondent was deportable as chaiged and
ineligible, as an alien who has been convicted of an aggravated felony,
for the relief sought under sections 208 and 243(h) of the Act? As we
find that the record does not establish that the respondent has been
convicted of an aggravated felony within the meaning of section
101(a)(43) of the Act, 8 U.S.C. § I101(a)(43) (Supp. V 1993), we shall
remand the case to the immigiation judge for further proceedings.
Congress included within the definition of the term "aggravated
felony" under section 101(a)(43) of the Act "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(c)(2) of title 18, United States Code." Under 18 U.S.C.
924(c)(2) (1988), a "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 Matter of Davis,
20 I&N Dec. 536 (BIA 1992), this Board
observed, in dicta, that a single conviction for simple possession of a
controlled substance could constitute a conviction for an aggravated
2 An alien convicted of an aggravated felony is precluded by section 208(d) of the Act
from applying for asylum and is barred by section 243(1)(2) of the Act from receiving
withholding of deportation. Matter of C-, 20 MN Dec. 529 (BIA 1992); Matter of 7G 20,
lezN Dec. 418 (BIA 1991).
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Interim Decision #3234
felony. The example we cited was a conviction under 21 U.S.C.
§ 844(a) (Supp. V 1993), a codification of the Controlled Substances
Act. Under that statute, a defendant with no prior drug convictions
who is convicted of simple possession of more than 5 grams of a
mixture or substance which contains cocaine base is subject to a term
of imprisonment of 5 to 20 years. 3 Matter of Davis, supra, at 543 n.6.
Inasmuch as the maximum term of imprisonment authorized by the
statute exceeds 1 year, such offense is a felony.
18 U.S.C. § 3559
(1988); Matter of Davis, supra, at 543 n.6. As a felony under the
Controlled Substances Act, this offense is a "drug trafficking crime"
within the ambit of
18 U.S.C. § 924(c)(2) and, therefore, "illicit
trafficking" in a controlled substance and an aggravated felony within
the meaning of section 101(a)(43) of the Act. Pursuant to Matter of
Barrett,
20 I&N Dec. 171 (13IA 1990), a state conviction analogous to a
federal conviction under the single offense felony provision of
21
U.S.C. § 844(a) would also constitute a conviction for an aggravated
felony. Matter of Davis, supra, at 543.
A review of the Louisiana statute under which the respondent was
convicted indicates that the conviction was for simple possession of a
controlled substance." The offense underlying the respondent's convic.-
3 The statute in question,
21 U.S.C. § 844(a), states in part:
It shall be unlawful for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly, or pursuant to a valid
prescription or order, from a practitioner, while acting in the course of his professional
practice, or except as otherwise authorized by this subchapter or subchapter II of this
chapter. Any person who violates this subsection may be sentenced to a term of
imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or
both, except that if he commits such offense after a prior conviction under this
subchapter or subchapter II of this chapter, or a prior conviction for any drug or
narcotic offense chargeable under the law of any State, has become final, he shall be
sentenced to a term of imprisonment forgot less than 15 days but not more than 2
years, and shall be fined a minimum of $2,500, except, further, that if he commits
such offense after two or more prior convictions under this subchapter or subchapter
II of this chapter, or two or more prior convictions for any drug or narcotic offense
chargeable under the law of any State, or a combination of two or more such offenses
have become final, he shall be sentenced to a term of imprisonment for not less than
90 days but not more than 3 years, and shall be fined a minimum of $5,000.
Notwithstanding the preceding sentence, a person convicted under this subsection of the
possession of a mixture or substance which contains cocaine base shall be imprisoned
not less than 5 years and not more than 20 years, and fined a minimum of $1,000, ifthe
conviction is a first conviction under this subsection and the amount of the mixture or
substance exceeds 5 grams . . . .
(Emphasis added.)
'Section 40:967F(2)(c) of the Louisiana Revised Statutes provides:
Any person who knowingly or intentionally possesses four hundred grams or more of
amphetamine or methamphetamine or a mixture or substance containing a detectable
amount of amphetamine or methamphetamine or any of its analogues as provided in
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Interim Decision #3234
Lion is a felony under Louisiana law by reason of the sentence
imposed. See La. Code Crim. Proc. Ann. art. 933(3) (West 1984)
("'Felony' means an offense that may be punished by death or by
imprisonment at hard labor."). The record does not reflect that the
respondent has any other convictions. However, notwithstanding the
similarities between the respondent's conviction and a conviction
under the single offense felony provision of 21 U.S.C. § 844(a), the
evidence in the instant case does not support a conclusion that the
respondent has been convicted of an aggravated felony inasmuch as he
stands convicted of possession of a quantity of cocaine and the
provision, by its terms, applies only to possession of "cocaine base,"
not "cocaine."
The penalty provisions of the Controlled Substances Act, codified at
21 U.S.C. § 841(b) (1988 & Supp. V 1993), and the corresponding
Sentencing Guidelines, 18 U.S.C.A. app. 4 § 2D1.1 (West. Supp. 1994)
("Sentencing Guidelines"), impose substantially more severe penalties
for offenses involving mixtures or substances containing "cocaine
base" than for offenses involving equal amounts of mixtures or
substances containing "cocaine." For example, 21 U.S.C.
§ 841(b)(1)(A)(iii) specifies a minimum 10-year prison term for
distributing 50 grams of a mixture containing cocaine base, whereas
section 841(b)(1)(A)(ii)(II) requires 100 times that quantity, UE 5
kilograms, of a mixture containing cocaine to trigger the same
minimum 10-year sentence. See, e.g., United States v. Williams,
876
F. 2d 1521, 1525 (1 ith Cir. 1989). Congressional hearing statements
indicate that Congress targeted cocaine base because it "(1) has a more
rapid onset of action, (2) is more potent, (3) is more highly addictive,
(4) is less expensive than cocaine powder, and (5) has widespread
availability." United States v. Thurmond, 7 F..3d 947, 952-53 (10th Cir.
1993) (citing statements from congressional hearings), cert. denied,
114
S. Ct. 1311 (1994); see also United States v. Singleterry,
29 F.3d 733,
740 (1st Cir.) cert. denied,
115 S. Ct. 647 (1994); United States v. Byse,
28 F.3d 1165, 1169 (11th Cir. 1994); United States v. Stevens,
19 F.3d
93, 97 (2d Cir. 1994); United States v. Jones,
979 F.2d 317, 319 (3d
Cir. 1992); United States v. Lawrence, 951 Fid 751, 754-56 (7th. Cit..
1991); United States v. Shaw,
936 F.2d 412, 415 - 16 (9th Cir. 1991);
Milted States v. Thomas,
932 F.2d 1085, 1090 (5th Cir. 1991), cert.
Schedule 11(C) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at
bard labor of not less than fifteen years, nor more than thirty years and to pay a fine of
not less than two hundred fifty thousand dollars, nor more than six hundred thousand
dollars.
La. Rev. Stat. Ann. § 40:967F(2)(c) (West 1984). We note that although the foregoing
statutory provision makes no direct reference to cocaine, the record nevertheless reflects
that the respondent was convicted of possession of cocaine in violation of this section.
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Interim Decision #3234
denied, 502 U.S. 1038, (1992); United States v. Levy,
904 F.2d 1026,
1032 (6th Cir. 1990), cert. denied sub nom. Black v. United States,
498
U.S. 1091 (1991); United States v. Thomas,
900 F.2d 37, 39-40 (4th
Cir. 1990); United States v. Buckner,
894 F.2d 975, 978-79 (8th Cir.
1990); United States v. Cyrus,
890 F.2d 1245, 1248 (D.C. Cir. 1989).
We note that the distinction between the different forms of cocaine has
repeatedly withstood constitutional challenge on various grounds. See,
e.g., United States v.
Singleterry, supra, at 740 - 41; United States v.
Byse, supra, at 1167-71; United States v.
Stevens, supra, at 96-97;
United States v. Thurmond, supra, at 951-53; United States v. Bynum,
3
F.3d 769 (4th Cir. 1993), cert. denied,
114 S. Ct. 1105 (1994); United
States v. Williams,
982 F.2d 1209, 1213 (8th Cir. 1992); United States
v. Jones,
979 F.2d 317, 318-20 (3d Cir. 1992); United States v.
Lawrence, supra; United States v. Galloway,
951 F.2d 64, 65-66 (5th
Cir. 1992) (per curiam); United States v.
Shaw, supra, at 416; United
States v. Thomas,
932 F.2d at 1089-90; United States v.
Levy, supra;
United States v.
Cyrus, supra.
The term "cocaine base" is not defined in the Controlled Substances Act. However, effective November 1, 1993, the Sentencing
Guidelines were amended by the United States Sentencing Commission to provide: 'Cocaine base,' for the purposes of this guideline,
means 'crack.' Crack' is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form."
Sentencing Guidelines, § 2D1. 1(c); see also United States v. Munoz-Realpe,
21 F.3d 375 (11th Cir. 1994). In amending the Sentencing
Guidelines, the Sentencing Commission addressed an intercircuit
conflict with respect to the scope of the term "cocaine base." Compare,
e.g., United States v.
Shaw, supra (finding that cocaine base means only
crack) with United States v. Jackson,
968 F.2d 158 (2d Cir.) (stating
that cocaine base has a scientific definition not limited to crack), cert.
denied,
113 S. Ct. 664 (1992). Under the amendment, forms of cocaine
base other than crack are treated as cocaine.
58 Fed. Reg. 27,148,
27,156 (1993); see also United States v.
Munoz-Realpe, supra, at 377
("By allowing the amendment to take effect, Congress has given its
imprimatur to the new definition of 'cocaine base'; Congress indicated
that it intends the term 'cocaine base' to include only crack cocaine.").
But see United States v. Palacio, 4 F.3d 150, 154 (2d Cir. 1993)
(holding that the broader, scientific definition of "cocaine base"
previously adopted by the court remains valid for purposes of the
Controlled Substances Act "in the absence of new guidance from
Congress"), cert. denied,
114 S. Ct. 1194 (1994).
As the respondent in this case was convicted of possession of
"cocaine," the evidence of record does not support an analogy to the
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Interim Decision #3234
single offense felony provision of 21 U.S.C. § 844(a). The record
consequently does not establish that the respondent was convicted of
an aggravated felony, and he does not appear barred on that basis from
demonstrating statutory eligibility for asylum or withholding of
deportation. The record will accordingly be remanded to the immigration judge for further consideration of the respondent's application for
the relief sought under sections 208 and 243(h) of the Act in light of
our determination.
ORDER: The appeal is sustained and the record is remanded
to the immigration judge for further proceedings consistent with the
foregoing opinion and for the entry of a new decision.
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