War on Drugs or a War on Immigrants?: Expanding the Definiton of "Drug Trafficking" in Determining Aggravated Felon Status for Noncitizens

• NCJ Number: 213493
• Journal: Maryland Law Review Volume: 64 Issue: 3 Dated: 2005 Pages: 875-909
• Author(s): Jeff Yates; Todd A. Collins; Gabriel J. Chin
• Date Published: 2005
• Length: 35 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article evaluates competing interpretations of the Immigration and Nationality Act’s (INA’s) drug-related aggravated felony rules by the United States courts of appeals and the Board of Immigration Appeals and considers this issue within the larger political context of America’s war of drugs.

Abstract

The main conclusion is that interpretations of the INA’s aggravated felony provisions that allow offenses falling below the Federal threshold for aggravated felony status subjects a historically disempowered group (noncitizens) to a disproportionate share of the burden in the war on drugs. Subjecting noncitizens to State felony rules that fall below Federal felony thresholds leads to unwarranted collateral immigration consequences for noncitizen. In making this argument, the authors first explore the political context and the policy implications of the government’s war on drugs for minority members and immigrant groups. The three main competing interpretations of the INA’s drug-related aggravated felony rules are assessed: the hypothetical Federal felony perspective, the State classification of label perspective, and the State substantive felony perspective. The Board of Immigration Appeals (BIA) position on the INA’s aggravated felony provision is that it will follow the rule adopted by the relevant circuit in deciding whether a State felony constitutes an aggravated felony for collateral immigration consequences. The authors argue against this BIA position in the last section of the article when they state that in order to subject noncitizens to the immigration disabilities associated with aggravated felony status, State drug-related aggravated felony rules should not fall below the threshold set by Federal counterparts. The legislative history of the felony classification is reviewed and a proper interpretation of the statutory definitions of felony offense is presented. This interpretation argues that classifying a drug offense that is punishable by less than 1 year imprisonment as a felony is at odds with the definition of “felony drug offense” contained in the Controlled Substances Act, the proper authority for defining drug-related aggravated felonies. Footnotes