The Board of Immigration Appeals has determined that “any fact that establishes or increases the permissible range of punishment is an element of the offense for federal purposes.” In so doing, it rejected the respondent’s argument that the identity of a controlled substance is only a “grading factor,” and not an “element,” under Pennsylvania state law.

The full text of Matter of German Santos can be found here:

https://www.justice.gov/eoir/page/file/1499291/download

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