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2 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2007)

handle is hein.journals/dukjppsid2 and id is 1 raw text is: LOPEZ v. GONZALES & TOLEDO- FLORES v. UNITED STATES: STATE FELONY DRUG CONVICTIONS NOT NECESSARILY AGGRAVATED FELONIES REQUIRING DEPORTATION RYAN WAGNER* I. INTRODUCTION The United States Courts of Appeals split about whether state felony drug convictions, which were punishable only as misdemeanors under federal law, constituted aggravated felonies under immigration law.' The controversy was based upon the interpretation of the Immigration and Nationality Act (INA'). Under the Act, an alien who is convicted of an aggravated felony is automatically deported from the United States.2 According to the INA, an aggravated felony includes illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18).' Although the INA does not define illicit trafficking, Title 18 of the United States Code defines the term 'drug trafficking crime' [as] any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).4 Although the Controlled Substances Act (CSA) is a * 2007 J.D. Candidate, Duke University School of Law. 1. United States v. Briones-Mata, 116 F.3d 308, 310 (8th Cir. 1997), quoted in United States v. Hernandez-Avalos, 251 F.3d 505, 510 (5th Cir. 2001) (holding that Congress made a deliberate choice to include, as aggravated felonies, state felony convictions that would qualify only as misdemeanors under federal law); Aguirre v. Immigration and Naturalization Serv., 79 F.3d 315, 317 (2d Cir. 1996) (holding, in contrast to the Fifth and Eighth Circuit, that nationwide uniformity is important and state felonies are not aggravated felonies if the conviction would only amount to a misdemeanor under federal law). 2. 8 U.S.C. § 1227(a)(2)(A)(iii). 3. 8 U.S.C. § 1101(43)(B). 4. 18 U.S.C. § 924(c)(2).

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