A War on Drugs or a War on Immigrants? Expanding the Definition of 'Drug Trafficking' in Determining Aggravated Felon Status for Non-Citizens

Abstract

In this article we assess competing interpretations of the Immigration and Nationalization Act's 'aggravated felony' provisions, specifically the determination of what state drug offenses properly constitute 'aggravated felonies,' thus subjecting non-citizens to deleterious collateral immigration consequences, including deportation. This issue is considered within the broader political and social context of the nation's 'war on drugs' and wide-ranging trends in American immigration policy. We argue that state drug offenses should be analogous to the traditional federal characterizations of a felony (i.e. yielding more than a year of imprisonment) in order to be appropriately considered aggravated felonies. We conclude that interpretations of the aggravated felony provisions that allow offenses falling below this threshold to be considered aggravated felonies are misguided, lead to unwarranted collateral immigration consequences for non-citizens, and fit within a broader pattern of inordinate burden sharing in the war on drugs by historically disempowered groups.

Keywords: Immigration, crime, criminal, aggravated felony, felony, alien, deportation, drugs, narcotics, prosecution, public policy, law, legal, economic, states, statutory interpretation, constitutional, federalism, war, equity, president, congress, politics, racial, discrimination