Cite as 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686
1 The respondent is in deportation proceedings. Prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.
104-208, 110 Stat. 3009-546 (“IIRIRA”), an Order to Show Cause and Notice of Hearing
(Form I-221) was issued on June 4, 1984, charging the respondent with deportability as an
alien who entered the United States without inspection, which he has conceded. The IIRIRA
replaced deportation proceedings and the laws governing those proceedings with the new
statutory scheme for removal proceedings. As a general rule, section 309(c) of the IIRIRA,
110 Stat. at 3009-625, preserved most of the prior deportation law for those cases already
ongoing at the time of its enactment, i.e., for those aliens in deportation proceedings under
the pre-IIRIRA law. It also made the post-IIRIRA laws applicable only to those aliens
placed into removal proceedings after its enactment, with some exceptions. Consequently,
the Department of Homeland Security properly acted within its discretion when, subsequent
Matter of Fidel Antonio SANCHEZ-CORNEJO, Respondent
File A026 419 303 – Houston, Texas
Decided July 7, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
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).
FOR RESPONDENT: Mario Caballero, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Wm. Tracy Hamby, Assistant
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated May 6, 2008, an Immigration Judge found the
respondent 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
The Immigration Judge also found the respondentCite as 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686
to the IIRIRA, it filed additional allegations of fact and lodged additional charges
of deportability against the respondent under former section 241 of the Act.
ineligible for special rule suspension of deportation under section 203(a)(1)
of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No.
105-100, tit. II, 111 Stat. 2160, 2193, 2196-97, amended by Pub. L. No.
105-139, 111 Stat. 2644 (1997) (“NACARA”), based on his conviction for
an aggravated felony. The respondent has appealed from the Immigration
Judge’s finding regarding his eligibility for special rule suspension
of deportation. The appeal will be sustained, and the record will be remanded
to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador who entered the
United States without inspection on March 28, 1984. He was convicted
on September 4, 1996, in the 185th District Court of Harris County, Texas,
of delivery by actual transfer of a simulated controlled substance, namely,
cocaine. The Immigration Judge determined that this conviction rendered
the respondent deportable as an alien convicted of an aggravated felony,
as defined by section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B)
(2006), which therefore made him ineligible for special rule suspension
On appeal, the respondent argues that his offense does not constitute a drug
trafficking crime because simulated cocaine is not a controlled substance,
as that term is defined in 21 U.S.C. § 802(6) (2006). Consequently,
he contends that he has not been convicted of an aggravated felony and
is eligible for special rule suspension of deportation.
The term aggravated felony is defined by section 101(a)(43)(B) of the Act
to include “illicit trafficking in a controlled substance (as defined in section
102 of the Controlled Substances Act), including a drug trafficking crime
(as defined in section 924(c) of title 18, United States Code).” The “illicit
trafficking” clause of the aggravated felony definition is distinct from the
“drug trafficking crime” clause and “includes any state, federal, or qualified
foreign felony conviction involving the unlawful trading or dealing of any
controlled substance as defined in section 102 of the Controlled Substances
Act.” Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992), modified, Matter
of Yanez, 23 I&N Dec. 390 (BIA 2002). Thus, under Matter of Davis,Cite as 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686
an alien’s State drug offense qualifies as 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. Id. Because simulated cocaine is not a Federally
controlled substance, the respondent’s offense does not constitute an “illicit
trafficking” offense. See 21 U.S.C. § 812 (2006) (setting forth the schedules
of controlled substances). Accordingly, to be an aggravated felony, the
respondent’s offense can only qualify under the “drug trafficking crime”
clause of section 101(a)(43)(B).
We agree with the respondent that his offense is not a “drug trafficking
crime” within the definition of an aggravated felony in section 101(a)(43)(B)
of the Act. A State drug offense qualifies as a drug trafficking crime under
18 U.S.C. § 924(c) (2006) and, by extension, an aggravated felony under
section 101(a)(43)(B) of the Act, if the offense would have been punishable
as a felony under the Controlled Substances Act, 21 U.S.C. § 801 et seq.
(2006) (“CSA”). Lopez v. Gonzales, 549 U.S. 47 (2006). The delivery
of a simulated controlled substance is not an offense that is punishable under
the CSA. While it is unlawful to “create, distribute, or dispense, or possess
with intent to distribute or dispense, a counterfeit substance” under
21 U.S.C. § 841(a)(2) (2006), the respondent’s offense does not fall within this
Section 482.001(4) of the Texas Health and Safety Code defines
a “simulated controlled substance” as one “that is purported to be a controlled
substance, but is chemically different from the controlled substance
it is purported to be.” In contrast, the term “counterfeit substance” is defined
in 21 U.S.C. § 802(7) as
a controlled substance which, or the container or labeling of which, without
authorization, bears the trademark, trade name, or other identifying mark, imprint,
number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser
other than the person or persons who in fact manufactured, distributed, or dispensed
such substance and which thereby falsely purports or is represented to be the product
of, or to have been distributed by, such other manufacturer, distributor, or dispenser.
In United States v. Crittenden, 372 F.3d 706 (5th Cir. 2004), the
United States Court of Appeals for the Fifth Circuit considered whether a prior
Texas conviction for delivery of a simulated controlled substance qualified
as a conviction for a controlled substance offense for the purpose
of determining whether one could be sentenced as a career criminal under the
United States Sentencing Guidelines. The Fifth Circuit noted that the Texas
statute does not require that the purported controlled substance have any
identifying marks or otherwise misrepresent its manufacturing origin, requiring
only that the substance be in imitation of a controlled substance. Id. at 708-09.Cite as 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686
2 Notwithstanding, the Fifth Circuit held that the conviction was for a “counterfeit
substance” under the Sentencing Guidelines because it found that the Guidelines did not
mean to incorporate only the narrow definition of a counterfeit substance
in 21 U.S.C. § 802(7). Other circuits have similarly ruled. E.g., United States v. Mills, 485
F.3d 219, 223, 225 (4th Cir. 2007); United States v. Robertson, 474 F.3d 538, 540-41 (8th
Cir. 2007); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996). Unlike the
Guidelines, which do not cross-reference the CSA for its definition of a counterfeit
controlled substance, section 101(a)(43)(B) of the Act requires that we apply this definition
to determine whether the respondent’s offense constitutes a drug trafficking aggravated
3 The respondent has not disputed on appeal the Immigration Judge’s finding, with which
we concur, that the respondent is deportable under former section 241(a)(2)(B)(i) of the Act,
as an alien who has been convicted of violating a law “relating to” a controlled substance.
See Matter of T-C-, 7 I&N Dec. 100 (BIA 1956); see also Desai v. Mukasey, 520 F.3d 762
(7th Cir. 2008) (holding that a conviction for distribution of a look-alike substance
constituted a conviction relating to controlled substances). 4 Former section 244(a)(2) of the Act was repealed by section 308(b)(7) of the IIRIRA,110
Stat. at 3009-615.
Consequently, the Fifth Circuit concluded that under the narrow definition
in the CSA, the elements for a Texas simulated controlled substance offense
do not correspond to those for a counterfeit controlled substance offense under
the Federal statute. Id.2
Based on the foregoing, we conclude that the respondent’s September 1996
conviction was not for an “aggravated felony” that would support a charge
of deportability under former section 241(a)(2)(A)(iii) of the Act or bar him
from establishing eligibility for special rule suspension of deportation under
section 203(a)(1) of the NACARA. See 8 C.F.R. § 1240.65(a) (2010).
However, because the respondent is deportable under former section
241(a)(2)(B)(i) of the Act,3
he is required to show that he accrued 10 years
of physical presence “immediately following the commission of an act . . .
constituting a ground for deportation” to qualify for suspension of deportation.
Former section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1994).4
The relevant period of the respondent’s continuous physical presence
commenced when he was convicted of delivery of a simulated controlled
substance on September 4, 1996. See Matter of Lozada, 19 I&N Dec. 637, 640
(BIA 1988) (explaining that the 10-year period is measured from the date
of the conviction for the offense that renders the respondent deportable).
Because it appears that the respondent has accrued the required 10 years
of continuous presence, we will remand the record for consideration of his
application for special rule suspension of deportation. On remand, the parties
should be provided an opportunity to present evidence to show whether the
respondent is eligible for special rule suspension of deportation and whether
he merits such relief as a matter of discretion.Cite as 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686
ORDER: The appeal is sustained.
FURTHER ORDER: The Immigration Judge’s order finding the
respondent deportable under section 241(a)(2)(A)(iii) of the Act and ineligible
for relief on that basis is vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing order and for the entry
of a new decision.