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Dear Editor:

I am an attorney member of ILW.COM and would like to comment on your news item in the Daily of May 15, 2002. The BIA has recently held in In re Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002) (en banc) (May 13, 2002), that whether a state drug offense constitutes a "drug trafficking crime" such that it may be considered an aggravated felony shall be determined by reference to decisional authority from the various federal circuit courts of appeals.

The impact of this case will be felt by one group of offenders: marijuana users. To understand why, it is necessary to review the two separate grounds for removal based on a drug conviction.

First, any person who is convicted of "a violation...of any law...relating to a controlled substance offense" is grounds for removal (deportation). The only exception to this rule is specifically set forth in the INA as a "single offense involving possession for one's own use of 30 grams or less of marijuana," (INA section 237(a)(2)(B)).

Secondly, the commission of an "aggravated felony" is also grounds for removal. One species of aggravated felony under the INA is "drug trafficking as defined in Sect. 802 USC section 924(c). At first blush, this type of aggravated felony would seem to exclude simple possession offenses. However, checking the statute reveals that it includes "ANY felony punishable under the Controlled Substance Act" (or its state equivalent).

Until recently, attorneys were confident that, since first time possession of less than 30 grams of marijuana is not a felony under federal law, then it could not be considered a felony for purposes of immigration law. However, Matter of Yanez disregards this common sense reading and now allows the INS to consider simple possession of marijuana to be considered a felony if it is treated as such under state law, regardless of the fact that it is a misdemeanor under federal law.

So who is impacted by this decision? Not users of cocaine, heroin, crack, LSD or ecstasy. Persons convicted for possessing these substances are already removable under the "violation...of any law...relating to a controlled substance offense" category. In fact, the only group of persons who will suffer under this new interpretation are noncitizen marijuana users.

I hope that this case is publicized for what it really is -- yet another attack on otherwise productive and law abiding members of our society who choose to use the relatively benign substance marijuana.

Thomas W. Dean, JD, International Law Group,
Miami Beach, FL

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