Interim Decision #3234 

MATTER OF L-GIn 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 I221) 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 

2An 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.- 

3The 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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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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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. MunozRealpe, 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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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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