• If it is an offense (and at least arguably a Washington felony) that meets the general definition of trafficking, such as sale or possession for sale, or

• If it is a Washington or other state felony offense that is analogous to a federal drug crime referenced in the aggravated felony definition whether or not it involves trafficking, such as some prescription offenses. For an analysis of when the aggravated felony definition applies to a noncitizen Chapter One, Section C4: Aggravated Felony.

2. Definition of Illicit Trafficking as an Aggravated Felony

Under 8 USC 1101(a)(43), the term aggravated felony “applies to an offense described in this paragraph whether in violation of Federal or State law...” The drug-related aggravated felony definition at 8 USC 1101(a)(43)(B) includes “illicit trafficking in a controlled substance,” so it includes any offense that has an actual trafficking element. However, the definition also incorporates “a drug trafficking crime” as defined in 18 USC 924(c). This in turn includes “any felony punishable under the Controlled Substances Act . . .” (CSA) and two other less important federal drug statutes. Although simple possession is punishable under the CSA,¹⁵³ a first simple possession is not punishable by imprisonment of more than a year¹⁵⁴ and therefore would not be a federal felony.¹⁵⁵ There is a split in the circuits about whether such a state simple possession felony is within the definition of aggravated felony, but the Ninth Circuit has now ruled that it is not an aggravated felony for deportation.¹⁵⁶ However, because a federal first simple possession conviction for either more than 5 grams of cocaine base, or any amount of flunitrazepam, is punishable by more than one year, such state convictions will be aggravated felonies.¹⁵⁷

3. Deportability Grounds

Noncitizens are deportable under the following circumstances:

• If they are convicted of any offense “relating to” controlled substances, or

• If they are convinced of aggravated felony under 8 USC 1227(a)(2)(A)(iii); or

• If they have been a drug addict or abuser since admission to the United States under 8 USC § 1227(a)(2)(B)(ii), regardless of whether there is a conviction.

A simple possessory offense will not constitute a crime involving moral turpitude, but any drug trafficking offense will be a CIMT and, thus, could be a basis for deportation under 8 USC 1227(a)(2)(A)(i)&(ii).

4. Inadmissibility Grounds

Noncitizens will become inadmissible under the following circumstances:

• If they are convicted of any offense “relating to” controlled substances, or attempt or conspiracy to commit such an offense, it will cause inadmissibility under 8 USC § 1182(a)(2)(A)(i)(II).

• If they are currently drug addicts or abusers under 8 USC § 1182(a)(1)(A)(iv). A noncitizen is inadmissible if immigration authorities have probative and substantial “reason to believe” that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. 8 USC § 1182(a)(2)(C).

• If he formally admits all of the elements of a controlled substance conviction. 8 USC § 1182(a)(2)(A)(i). The latter does not apply, however, if the charge was brought up in criminal court and resulted in something less than a conviction158 (e.g., if the person pled guilty to simple possession but the conviction was effectively eliminated according to Lujan-Armendariz, which is further discussed in section B.4, below.)Simple possessory offenses will not constitute crimes involving moral turpitude. However, any drug trafficking offense will be a CIMT and, thus, could be an additional basis for inadmissibility and/or removal under 8 USC 1182(a)(2)(A)(i)(II).

• Simple possessory offenses will not constitute crimes involving moral turpitude. However, any drug trafficking offense will be a CIMT and, thus, could be an additional basis for inadmissibility and/or removal under 8 USC 1182(a)(2)(A)(i)(II).

¹⁵⁴ 21 USC § 844(a): “Any person who violates this subsection may be sentenced to a term of

¹⁵⁵ United States v. Arrellano-Torres, 303 F.3d 1173, 1177-78 (9th Cir. 2002).

¹⁵⁶ See Oliveira-Ferriera v. Ashcroft, 382 F.3d 104, 2004 U.S. App. LEXIS 18988 (9th Cir. 2004); Cazarez-, 382 F.3d 905 (9th Cir. 2004).

_¹⁵⁷ 21 USC § 844(a).

¹⁵⁸ See, e.g., Matter of CYC, 3 I. & N. Dec. 623 (BIA 1950) (dismissal of charges overcomes independent