The Fourth Circuit has determined that a Tennessee conviction for manufacturing, delivering, selling, or possessing with intent to manufacture, deliver, or sell a controlled substance is both a crime involving moral turpitude and a drug trafficking aggravated felony. With respect to the aggravated felony ground, the Court found the statute to be overbroad because it criminalizes possession with intent to deliver one half-ounce, or approximately 14 grams, of marijuana and does not include any reference to remuneration. Such conduct is punishable as a misdemeanor under federal law.
However, the Court found the statute to be divisible because each subsection provides for a different punishment depending on the quantity and type of drug involved. Examining the record of conviction, the Court determined that the petitioner was convicted of possession with intent to sell more than 4,000 grams of marijuana.
In addition, because the statute requires a mens rea (knowingly) and involves reprehensible conduct (drug trafficking), it also qualifies as a crime involving moral turpitude (CIMT).
Finally, the Court deferred to the Board of Immigration Appeals (BIA) in Matter of Balderas. In Balderas, the BIA considered whether a CIMT that has been used as part of the basis for a "two or more CIMTs” charge of removability in an immigration proceeding that terminated with a § 212(c) waiver may later be used as part of the basis for a “two or more CIMTs” charge of removability if the petitioner in question commits another CIMT after the first immigration proceeding was terminated. The BIA held that such a previously found CIMT could be used with a new CIMT to support a charge of removability because a grant of section 212(c) relief waives the finding of excludability or deportability rather than the basis of the excludability itself." Thus, because the petitioner was also convicted of a CIMT in 2000, a waiver of the 1995 CIMT under 212c would not prevent a finding that the petitioner was removable for two CIMTs.
The full text of Guevara-Solorazano v. Sessions can be found here: