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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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