I Am Not a U.S. Citizen’ Will I Be Deported’

A federal conviction for a crime involving controlled substances triggers mandatory deportation for non-citizens in most circumstances. The immigration consequences of a federal opioid fraud conviction are among the most severe and least reversible consequences in the full range of outcomes, and they must be assessed at the beginning of any defense strategy for a non-citizen practitioner.

The Immigration and Nationality Act provides that any alien who is convicted of a violation of or conspiracy to violate any law relating to a controlled substance is deportable. The deportation ground is broad: it reaches convictions under 21 U.S.C. 841 and 846, the primary controlled substance distribution statutes under which opioid fraud is prosecuted, without exception for first offenses, minor involvement, or the absence of prior immigration violations.

The Deportability Analysis

A conviction under 21 U.S.C. 841 for distribution of a controlled substance outside the usual course of professional practice is a conviction for a violation of a law relating to a controlled substance within the INA’s deportability ground. The conviction triggers the deportability ground regardless of the sentence imposed, regardless of whether the practitioner has lawful permanent residence, and regardless of the length or quality of their prior presence in the United States.

The aggravated felony ground under the INA, which applies to drug trafficking crimes, may additionally apply to a 841 conviction, and the aggravated felony deportability ground carries its own severe immigration consequences including permanent inadmissibility and the elimination of most forms of immigration relief. The aggravated felony analysis requires a careful comparison of the elements of the offense of conviction with the generic definition of drug trafficking crime, and the result of that comparison may determine which immigration consequences attach.

Immigration Relief Considerations

Non-citizens who are deportable based on a controlled substance conviction have very limited immigration relief available. Cancellation of removal, which is available to long-term lawful permanent residents in some circumstances, is not available to persons convicted of aggravated felonies and may not be available to persons convicted of drug trafficking crimes. Asylum, withholding of removal, and Convention Against Torture relief may be available in specific circumstances based on the practitioner’s country of origin and the specific risks they face upon return.

The immigration relief analysis must be conducted by counsel who is experienced in both federal criminal defense and immigration law. The intersection of criminal defense and immigration consequences creates a specialized practice area that neither criminal defense attorneys nor immigration attorneys can address in isolation. The practitioner who retains criminal defense counsel without an immigration law component to the representation team may find, after the criminal case is resolved, that the immigration consequences were not adequately addressed during the plea negotiations.

Padilla Obligations

The Supreme Court’s decision in Padilla v. Kentucky in 2010 held that the Sixth Amendment requires defense counsel to advise non-citizen clients of the deportation consequences of a guilty plea. Counsel who fails to provide accurate advice about the immigration consequences of a plea has provided constitutionally ineffective assistance. The Padilla obligation applies to federal criminal defense counsel representing non-citizen clients, and the consequence of failing to advise is the client’s right to seek to withdraw the plea on ineffective assistance grounds.

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The non-citizen practitioner who is considering a guilty plea must receive specific, accurate advice about the immigration consequences of that plea before entering it. The plea that resolves a criminal matter favorably from a sentencing perspective but that triggers mandatory deportation may not be the best resolution for the practitioner whose primary concern is remaining in the United States. The criminal defense and the immigration defense must be developed together, not sequentially.

Strategic Implications

The deportation risk changes the calculus of the defense strategy for a non-citizen practitioner in ways that require specific analysis. A plea to a controlled substance offense that carries a shorter sentence but triggers mandatory deportation may be less favorable overall than a plea to a different offense that carries a longer sentence but does not trigger the deportation ground. A contested trial that risks a greater sentence but that might produce an acquittal on the controlled substance charges and no deportation consequence may be worth the risk if the immigration stakes are sufficiently severe. These are decisions that require counsel who understands both the criminal sentencing and the immigration consequences of each available outcome.