BIA HOLDS FLORIDA CRIMINAL CONVICTION FOR SALE OF CONTROLLED SUBSTANCE, WHERE STATUTE LACKS MENS REA REQUIREMENT REGARDING ILLICIT NATURE OF THE SUBSTANCE BUT REQUIRES KNOWLEDGE OF ITS PRESENCE AND INCLUDES AN AFFIRMATIVE DEFENSE FOR IGNORANCE OF SUBSTANCE’S UNLAWFULNESS, QUALIFIES AS AN ILLICIT TRAFFICKING AGGRAVATED FELONY PER INA § 101(a)(43)(B).
On August 15, 2014, the Board of Immigration Appeals (BIA), confirming that “illicit trafficking” as used in INA § 101(a)(43)(B) includes any state, federal or qualified foreign felony involving the unlawful trading or dealing of a controlled substance as defined by federal law, found that there is no express mens rea requirement included in that phrase. Because Congress intended “illicit trafficking” to encompass controlled substance offenses beyond those defined as “drug trafficking crimes”, the BIA held that the phrase need not be limited to federal, state or foreign convictions that require the defendant’s knowledge of the illicit nature of the substance and, thus, a person can engage in unlawful trading or dealing in a controlled substance without knowing the substance is illegal. The BIA further held that there is no mens rea requirement under the Florida criminal statute because knowledge of the presence of the substance is still required for a conviction and an affirmative defense of lack of knowledge is available. Matter of L-G-H-2, 26. I. & N. Dec. 365 (BIA 2014).
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