How Federal Drug Charges Impact Immigration Status

How Federal Drug Charges Impact Immigration Status

If you are a non-citizen of the U.S. and you have been convicted of a federal drug crime—there’s a serious possibility that you could be deported (removed) from the United States. This is true whether or not you are here in lawful immigration status.

You might hold a valid nonimmigrant visa, or even be a lawful permanent resident (green card holder), but still be deported for a federal drug crime. (If you’re not in lawful status in the U.S., but are undocumented, you can of course be deported on that basis alone.)

Immigration Laws Address Drug Crimes

U.S. immigration laws do, in fact, specifically address drug crimes. A noncitizen is deportable for having, at any time after being admitted to the U.S., been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance. [1]

What Qualifies as a Drug Conviction

If you are facing possible deportation for a drug crime, a criminal defense lawyer who understands immigration issues should analyze:

1. Does the conviction match the federal description of a deportable drug offense?
2. Is the conviction a conviction for immigration purposes?
3. If so, is there relief from deportation available?

This analysis requires looking at the specifics of federal immigration law as well as the details of the actual state criminal statute. [2]

Federal Drug Schedules

Immigration law defines a controlled substance as one listed in federal drug schedules. So a conviction relating to a substance not federally controlled could avoid deportability. [3]

Conviction vs Admission

In addition to a conviction, an admission to a drug offense can also make one deportable. However, admissions should be made cautiously, only when needed as part of an overall immigration strategy. Admissions might be needed to establish eligibility for relief from removal, for example. Or when evidence of guilt is overwhelming and immigration consequences of conviction would clearly be worse. [4]

Avoiding Deportation for Drug Crimes

There are several ways to avoid deportation if charged with a drug offense:

Avoid a Conviction

One can avoid a conviction by getting:

• Delinquency disposition in juvenile court
• Pretrial diversion
• Deferred entry of judgment (DEJ) with an unconditionally suspended fine
• Perhaps an infraction in some states

While avoiding a conviction avoids deportability, it still could negatively impact applications for immigration benefits. [5]

Eliminate Conviction Post-Plea

One might eliminate a conviction after the plea by:

• Vacating the conviction for cause
• Withdrawing a deferred entry of judgment plea
• Reversing on appeal
• Getting relief for some pre-July 2011 convictions

Vacaturs must be based on a defect in the underlying proceedings, not rehabilitation or immigration hardships. Withdrawals of DEJ pleas also have limitations.

Plead to Non-Drug Offense

One can plead to a non-drug offense and avoid deportation even when the conduct involved drugs. For example, pleading to being an accessory after the fact. Or to a non-drug charge like trespass, when the plea establishes elements not relating to drugs.

Plead to Non-Federal or Unspecified Drug

One also might plead to either:

• Possession of a specific drug not on the federal schedules
• Possession of an unspecified controlled substance

To employ these defenses may require going to trial and litigating factual innocence as to the federally controlled substance.

Other Immigration Defenses

While a drug conviction often leads to deportation, one might still defend against removal by applying for relief such as cancellation of removal. Factors like length of residence and ties to citizen family are considered.

In addition, a first conviction for simple possession of 30g or less of marijuana might qualify for a waiver of deportability.

Finally, a drug abuser or addict may still be admissible if there is evidence of remission through rehabilitation.

In sum, a drug conviction often leads to deportation. But working closely with a criminal defense attorney knowledgeable about immigration issues, one might avoid a conviction, eliminate a conviction post-plea, or plead strategically to avoid deportation. And if ordered deported, defenses still may exist to ultimately avoid removal.