“Offer to Sell” Not an Aggravated Felony

I receive many calls daily requesting recommendations on immigration related matters. Like most lawyers, I am reluctant to provide legal advice based on general information over the phone. My response to most calls is that I will need to review the case records in detail before I can give you an informed opinion.

There is a very good reason why attorneys don’t like to give phone advice. In most cases an attorney’s advice over the phone is incomplete and could be flat out wrong because the attorney does not have all the information. What appears to be a simple question can be easily answered in a misleading way inadvertently.

Is Trafficking Cocaine a Deportable Offense?

One example of such situation is a phone call I received from a lady in 2005 who was calling on behalf of her husband, and the father of her two children. She wanted to know if a conviction of Trafficking in Cocaine is a deportable offense. As a first impression, most readers will believe that you don’t need an attorney to answer this question. In fact most attorneys will probably respond by saying, obviously: yes it is a deportable offense.

Attorneys Need Full Information

I politely explained to her that the conviction does not appear encouraging but a quick response to this question over the phone cannot do justice to deciding if her husband has any chance of staying in the US. I informed her that I would need to know more to be able to answer the question and I asked her to send the conviction records and also informed her that I would need to charge a fee to provide sound legal advice.

No Selling or Possession

Upon reviewing the records of convictions and analyzing the Ohio Revised Code definition of “Trafficking in Cocaine” as the conviction was in Columbus, Ohio, I found a deficiency in Ohio law in its definitions. This told me that her husband had a chance to remain in the US. I met the husband and the family and I was convinced that he has been rehabilitated and felt that I would do good if I can help keep the father with his family in the US.

In addition, the facts of the case were stunning. This person who is convicted of Trafficking in Cocaine in Ohio never in fact sold, or possessed drugs ever. Ohio’s harsh law that convicts people with such crime without the person ever selling or possessing drugs must not be used to separate this family.

Facts of the Case

In 2007, the case reached the Sixth Circuit Court of Appeals: Mendieta-Robles v. Gonzales. The defendant-petitioner in this case was Benjamin Mendieta-Robles, a Mexican national and permanent resident of the United States. Mr. Mendieta-Robles plead guilty to selling or offering to sell 1,000 grams of cocaine under Ohio Revised Code § 2925.03(A)(1). As stated, drug trafficking aggravated felonies are deportable offenses under the Immigration and Nationality Act (INA) and, accordingly, the Department of Homeland Security initiated deportation proceedings against Mr. Mendieta-Robles due to his conviction.

During his deportation proceedings, Mr. Mendieta-Robles argued to both the Immigration Judge and, on appeal, to the Board of Immigration Appeals (BIA) that his conviction did not qualify as an aggravated felony. The Immigration Judge found, and the BIA affirmed, that Mr. Mendieta-Robles had been convicted of an aggravated felony within the meaning of the INA and Sixth Circuit case law, subjecting him to deportation.

Not an Aggravated Felony

The Sixth Circuit Court of Appeals reviewed the case to answer the question of “whether a state drug conviction qualifies as an aggravated felony under the INA.” Ultimately, the Court of Appeals found Mr. Mendieta-Robles’ conviction under Ohio state law did not constitute an aggravated felony under the INA. The following court explanation may be a bit complex but it highlights the point that simple questions deserve careful evaluation and not casual inquiry over the phone.

Two Ways Conviction Qualifies as Aggravated Felony

In the Court’s opinion, it explained that there were two approaches in which a state drug conviction would qualify as an aggravated felony.

Trafficking Element

The first approach the Court considered was whether the conviction was a felony under state law and contained a trafficking element. Mr. Mendieta-Robles did not contest the fact that his conviction was a felony; however, he argued that his conviction did not contain a trafficking element. To constitute a trafficking element, the conviction must involve “unlawful trading or dealing of a controlled substance.”

An individual could be convicted under the Ohio statute for selling or offering to sell drugs, even if the individual was not in possession of drugs and even if the individual did not transfer drugs to a buyer. Considering an individual could be convicted under the Ohio statute without actually trading or dealing a controlled substance and there were no facts on the record to indicate Mr. Mendieta-Robles traded or dealt a controlled substance, the Court of Appeals did not find the trafficking element to be satisfied.

Hypothetical Federal Felony

The second approach considered by the Court was the “hypothetical federal felony.” The “hypothetical federal felony” approach considers only whether the conviction would be punishable as a felony under the Controlled Substances Act and not whether the offense was actually a felony under state law.

The Court of Appeals compared Mr. Mendieta-Robles’ conviction under Ohio state law with a felony conviction under the Controlled Substances Act, but found the two were not analogous. In particular, the Court of Appeals noted that Mr. Mendieta-Robles lacked the requisite mens rea, or intent, to commit a distribution crime under the Controlled Substances Act.

Deportation Terminated

Though this case was not certified as a reported case, normally a designation for cases that makes new law, it unofficially set new precedent in the Sixth Circuit regarding whether an “offer to sell” constitutes an aggravated felony. Not to mention, much to Mr. Mendieta-Robles’ relief, the Court of Appeals remanded the case to the BIA for an order terminating his deportation proceedings and the Immigration Court terminated his deportation accordingly.

One last note, the government placed Mr. Mendieta-Robles in deportation for the second time after five years of litigation and after our victory in the Sixth Ciruit relying on new legal argument for the same conviction, only to lose again on a second appeal under the doctrine of Res Judicata. I was glad to help Mr. Mendieta-Robles in this case who has proved himself to be a committed father, husband and a productive member of our community.

As you can see, the expertise and help of a Columbus immigration attorney turned out to be invaluable in this case.

Shihab Burke, LLC, Attorneys At Law Can Help

If you are an immigrant with any questions or concerns regarding your immigration case, visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issue you face and defend you if you’re accused of violating immigration law.

Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.

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