By Linda Nwoke
Drug convictions can have life-altering consequences for any individual, but the results can be even more severe for immigrants. Many immigrants are unaware that a drug conviction can affect their immigration status.
Federal immigration laws detail severe immigration penalties on most controlled substance offenses, including minor ones.
In California, a conviction based on the simple possession of supplies or being under the influence of a substance can result in an immigrant’s detention without bond at the U.S. Immigration and Customs Enforcement Agency (ICE).
In some instances, it can result in them becoming ineligible for lawful status or permanent deportation to their home country without consideration of the possible impact on the person or their family in the U.S.
Some offenses, such as the possession of substances for sale, or misdemeanors like growing more cannabis plants than permitted, are classified as “aggravated felonies.” They carry the most stringent penalties and make it difficult for attorneys to defend clients facing a drug charge without jeopardizing their immigration status.
Every immigrant involved in any criminal proceeding is at significant risk irrespective of their immigration status, such as a long-time lawful permanent resident, undocumented, asylee, student, DACA recipient, or person with another immigration status.
A drug crime-convicted immigrant may face removal proceedings, inadmissibility, and the denial of certain benefits.
Consequence 1: Inadmissible to the United States
You may be inadmissible if you are not a United States citizen with a convicted drug-related offense. Inadmissibility is a status that can prevent a person from entering the United States, which includes during visa application or trying to gain admission at the border.
The United States Immigration and Nationality Act (INA) has several sections that make individuals inadmissible based on their criminal record. The Act includes convictions for controlled substances such as marijuana, cocaine, methamphetamine, and heroin.
Under the Act, in some cases, an arrest or a conviction for a lesser drug-related crime can also trigger inadmissibility. It is worth noting that the standard for inadmissibility based on a drug conviction differs depending on the application type – for a nonimmigrant or an immigrant visa. Suppose there has been a conviction of a drug-related offense that was considered a felony in the identified jurisdiction. In that case, the individual may become ineligible for nonimmigrant visas to the United States.
Alternatively, those seeking an immigrant visa may become inadmissible if convicted of two or more drug-related offenses, regardless of its level of gravity. It is essential to understand that even if the person is found inadmissible because of their criminal record, there are still some potential ways to manage the situation.
For example, they may apply for a waiver of inadmissibility based on humanitarian purposes, family unity, or public interest. However, the waiver application process can be complex and challenging, and there is no guarantee that the waiver request will be successful. Therefore, it is crucial to consider the potential immigration consequences of a drug conviction before entering a plea bargain or being convicted. An experienced immigration lawyer can help individuals better understand the risks involved and provide guidance on minimizing the negative impact on their ability to travel to or remain in the United States.
Consequence 2: Getting Deported from the United States
Under U.S. immigration law, any non-U.S. citizen convicted of a drug-related offense may be subject to deportation from the country. The category includes people in the United States with valid visas, green card holders, and those applying for permanent residence.
If found guilty of a drug-related offense, even if it is a minor offense such as the possession of marijuana or prescription drugs, it can result in potential deportation. Suppose the individual is guilty of a more serious drug crime, such as trafficking or manufacturing drugs. In that case, they will be subject to mandatory deportation proceedings. It’s pertinent to note that individuals can be deported even without a conviction for an actual crime. They may also face deportation on the admission of guilt, plea bargain, or entering a deferred judgment program on a drug-related charge.
Deportation can also happen even if the conviction occurred many years ago. In some cases, the U.S. government can choose to deport the individual for an incident that occurred many years prior. Consequently, there is a massive impact on an individual’s immigration status based on a drug conviction. It is vital to consider the repercussions before agreeing to any plea deal or entering into any deferred judgment program.
Consequence 3: Ineligible for Certain Immigration Benefits
For non-U.S. citizens, a drug conviction can result in disqualification from certain immigration benefits depending on the severity of the sentence. These include certain visas, green cards, and ineligibility for naturalization and citizenship.
To become a U.S. citizen through naturalization, an individual must have been “lawfully admitted for permanent residence” and demonstrated “good moral character.” A conviction for a drug offense can make it challenging to establish good moral character, resulting in the privilege of becoming a U.S. citizen through naturalization.
Also, a drug conviction can make it more difficult to reenter the United States after traveling abroad. In some cases, even if the individual has a valid visa or green card, a conviction for a drug offense may cause the U.S. Customs and Border Protection (CBP) to refuse the person’s reentry into the country. Hence, the exact immigration consequences of a drug conviction can vary depending on the type of offense, criminal record, and other factors.
Therefore, non-citizens need to understand the potential effects before engaging in any activity that could lead to criminal charges.
Defending Immigrants Charged with Drug Offenses
Irrespective of the nature of the convicted drug offense, an immigrant can consult an experienced immigration lawyer for legal advice, especially if they are concerned about their immigration status or facing a drug crime. Sadly, the nature of the charge can grossly limit the immigrant’s right to specific services.
For the immigration attorney, pushing an immigration plea for the client is often challenging and unpredictable. Each client requires a personalized analysis based on their unique immigration and criminal record history.
Some Ways That Attorneys Can Help Their Clients
Identify a case goal: In an immigrant’s criminal case, the goal is to obtain a disposition that leaves the person’s immigration situation ideally without any conviction or at least the same before the criminal proceeding. One primary goal is to avoid conviction for any controlled substance offense (CSO), which has different consequences for different immigrants’ statuses.
The attorney must endeavor to bargain for a drop of the drug charge and, in some cases, plead to another offense. The latter is often considered the best immigration resolution other than dropping all orders. Thus, they identify a different, immigration-neutral offense as an alternative. However, suppose the immigrant cannot avoid an immigration proceeding. In that case, the attorney can endeavor to plead for a non-drug offense rather than arguing to Penal Code 32 or 372.5 for purposes of inadmissibility.
Additionally, the attorney can advise their clients on their rights not to talk to law enforcement agents when confronted, among other guidelines.
To schedule an appointment for a case evaluation, please call the Law Firm of Figeroux & Associates at 855-768-8845 or visit www.askthelawyer.us. The lawyer you hire does make a difference!