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Matter of Ivan Enedelio FLORES-Aguirre, Respondent

Decided June 27, 2013

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The offense of traveling in interstate commerce with the intent to distribute the

proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006)

is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug

trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled

substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.

FOR RESPONDENT: Paul H. Scott, Esquire, Baton Rouge, Louisiana

FOR THE DEPARTMENT OF HOMELAND SECURITY: Sherron Ashworth,

Assistant Chief Counsel

BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and GREER, Board

Members.

PAULEY, Board Member:

In a decision dated January 3, 2012, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(iii) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien

convicted of an aggravated felony, and under section 237(a)(2)(B)(i) of the

Act, as an alien convicted of a controlled substance violation, and ordered

him removed from the United States. The respondent has appealed from

that decision. The Department of Homeland Security opposes the appeal.

The respondent’s appeal will be sustained and the record will be remanded

to the Immigration Judge.

The respondent is a native and citizen of Mexico and a lawful

permanent resident of the United States. In 2011 he was convicted in a

Federal court in Alabama of traveling in interstate commerce with the intent

to distribute the proceeds of an unlawful drug business, a felony under

18 U.S.C. § 1952(a)(1)(A) (2006), for which he was sentenced to a term of

imprisonment of 12 months and 1 day. The respondent conceded that this

conviction renders him deportable as an alien convicted of a violation of

Federal law relating to a controlled substance. Thus, the sole issue on

appeal is whether the respondent’s offense is also an “aggravated felony”

that renders him ineligible for cancellation of removal pursuant to
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section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (2006). Upon de

novo review, we conclude that it is not.

At the time of the respondent’s offense and conviction, 18 U.S.C.

§ 1952(a)(1)(A) provided in pertinent part as follows:

Whoever travels in interstate or foreign commerce or uses the mail or any facility

in interstate or foreign commerce, with intent to—

(1) distribute the proceeds of any unlawful activity . . .

. . .

and thereafter performs or attempts to perform—

(A) [such a distribution] shall be fined under this title, imprisoned not

more than 5 years, or both . . . .

For purposes of § 1952(a), the term “unlawful activity” is defined to

include “any business enterprise involving . . . narcotics or controlled

substances (as defined in section 102(6) of the Controlled Substances

Act).” 18 U.S.C. § 1952(b)(1).

According to the respondent’s indictment, he violated § 1952(a)(1)(A)

because he

traveled in interstate commerce . . . with the intent to distribute the proceeds of an

unlawful activity, namely a business enterprise involving the possession with

intent to distribute controlled substances in violation of Title 21, United States

Code, Section 841(a)(1), and thereafter performed and attempted to perform an act

to distribute the proceeds of such unlawful activity.

The respondent entered a guilty plea to that charge, and there is no present

dispute that the “unlawful activity” underlying the respondent’s violation

was illicit drug distribution. Thus, the dispositive question is whether the

intentional distribution of the proceeds of an illicit drug business is an

“aggravated felony.”

The term “aggravated felony” means, inter alia, “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).” Section 101(a)(43)(B) of the Act,

8 U.S.C. § 1101(a)(43)(B) (2006). Although the respondent’s violation of

18 U.S.C. § 1952(a)(1)(A) is a Federal felony, it is not an aggravated felony

under the “drug trafficking crime” clause of section 101(a)(43)(B) because

it does not involve conduct punishable as a felony 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 chapter 705 of title 46,” as

required by 18 U.S.C. § 924(c)(2).1

1 As the respondent maintains in his appellate brief, there is no provision of the

Controlled Substances Act that prohibits an individual from distributing the proceeds of

(continued . . .)
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Furthermore, we agree with the respondent that his offense is not an

aggravated felony under the “illicit trafficking” clause of section

101(a)(43)(B) because it does not involve “unlawful trading or dealing” in

federally controlled substances, Matter of Davis, 20 I&N Dec. 536, 541

(BIA 1992), but rather involves conduct engaged in after such unlawful

trading or dealing has been consummated. Although distribution of

proceeds is an integral part of a drug organization’s business, such conduct

is too distinct from the actual physical distribution of drugs to be

considered an “illicit trafficking” aggravated felony under the interpretation

we adopted in Matter of Davis.

2 Accordingly, the respondent’s appeal will

be sustained.

In light of the foregoing, we conclude that the respondent is not

ineligible for cancellation of removal by virtue of having been convicted of

an aggravated felony. Accordingly, the record will be remanded for further

proceedings in connection with his request for such relief and for the entry

of a new decision.3

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing decision and for

the entry of a new decision.

_______________________________

unlawful drug sales. It is a felony to “use or invest” income derived from illegal drug

sales to acquire an interest in an enterprise affecting interstate commerce, see 21 U.S.C.

§ 854 (2006), and it is certainly conceivable that some “uses” or “investments” of illicit

drug proceeds might also qualify as “distributions” of such proceeds under 18 U.S.C.

§ 1952(a)(1)(A). We are aware of no case so holding, however, and the respondent’s

conviction record does not suggest that he was convicted under § 1952(a)(1)(A) based on

his “use or investment” of drug proceeds.

2 Every circuit that has reviewed our interpretation of the term “illicit trafficking” in

Matter of Davis has deferred to it. See Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.

2008); Gerbier v. Holmes, 280 F.3d 297, 305–06, 313 (3d Cir. 2002); Kuhali v. Reno,

266 F.3d 93, 107–08 (2d Cir. 2001). We note, moreover, that the “trafficking” and

“illicit trafficking” concepts have applications beyond section 101(a)(43)(B) of the Act.

E.g., section 101(a)(43)(C) of the Act (“illicit trafficking” in firearms, destructive devices,

and explosive materials); section 101(a)(43)(R) of the Act (offenses “relating to . . .

trafficking in vehicles” with altered identification numbers); section 212(a)(2)(C) of the

Act, 8 U.S.C. § 1182(a)(2)(C) (2006) (“illicit traffick[ing] in any controlled substance”).

3 Although the respondent’s recent conviction under 18 U.S.C. § 1952(a)(1)(A) does not

render him ineligible for cancellation of removal, it will be a highly relevant factor in the

discretionary determination on remand. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1692

(2013).