This post continues our series on the impact of criminal convictions on immigration. Our last posts dealt with Crimes of Moral Turpitude (CIMTs) and Aggravated Felonies and you can find out more about that by clicking here (CIMT) or clicking here (Aggravated Felonies).

What are considered Controlled substance offenses?

These types of offenses are comprised of acts of simple possession of a controlled substance or the sale or distribution of a controlled substance. As mentioned before, the act of trafficking, sale or distribution of a controlled substance may also make the offense an aggravated felony.

What are the Immigration Consequences for noncitizens including Legal Permanent Residents?

A noncitizen with status or a legal permanent resident can be deportable if convicted of any offense related to a controlled substance at any time after admission into the United States other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.

Furthermore, a noncitizen convicted of an offense related to a controlled substance facing removal proceedings will also be disqualified from seeking release from immigration detention custody while facing removal proceedings.

Fortunately, a conviction for an offense related to a controlled substance will not disqualify a noncitizen from most forms of relief from deportation including legal permanent residents seeking relief from removal in the form of Cancellation of Removal for certain legal permanent residents. A discussion about Cancellation of Removal for certain legal permanent residents can be found by clicking here.

However, remember that if the offense was for sale or distribution of a controlled substance, such a conviction may be determined to be an aggravated felony carrying more severe consequences such as being disqualified from Cancellation of Removal, most forms of Asylum relief and disqualification from release on bond.

What are the Immigration Consequences for noncitizens attempting to enter the United States or living within the United States without status?

A noncitizen seeking physical admission into the United States or seeking to change status to that of a legal permanent resident will be denied physical admission or denied changing of status to legal permanent resident if the noncitizen is believed to be an illicit trafficker in controlled substances or convicted of or admits having committed, or admits committing acts which constitute the essential elements of a violation of any law relating to a controlled substance. This includes simple possession of such a substance. Note that this offense can harm a noncitizen seeking admission or living in the United States without status by conviction or evidence of the noncitizen admitting to violating a law relating to a controlled substance. Fortunately, a non-US Citizen in this situation may seek a waiver under certain conditions if it was a single offense related to simple possession of 30 grams or less of marijuana, but this waiver is not available for noncitizens believed to be controlled substance traffickers. For more information on waivers click here.

Furthermore, noncitizens living in the United States without status placed in removal proceedings will also be disqualified from the version of relief from removal known as Cancellation of Removal for certain nonlegal permanent residents. Again, information for Cancellation of Removal for nonlegal permanent residents can be found by clicking here.

Finally, a noncitizen living in the United States without status and facing removal proceedings will also be disqualified from seeking release from immigration detention custody.

What can an immigration attorney do for someone convicted of a controlled substance offense?

Again, an experienced immigration attorney can properly diagnose whether a conviction is related to a controlled substance offense. One of the common strategies to challenge such a charge is by demonstrating that the state-controlled substance list that criminalizes the substance that is the basis of the conviction regulates more substances than the equivalent federal controlled substance list. If the challenge is successful a legal permanent resident can have proceedings terminated while a noncitizen without status could continue to defend against removal by being able to present an application for Cancellation of Removal. Whatever the situation, it is best to hire an experienced immigration attorney to diagnose the conviction and present the appropriate argument.

See all of the posts in this series:

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