Criminal Defense of Immigrants


§ 21.1 I. Summary for Criminal Defense Attorneys

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Practically any criminal offense involving drugs can trigger disastrous immigration consequences.  Counsel must be especially wary when a client faces a drug charge, since even a minor drug offense will often trigger multiple grounds of removal.  These grounds are described in § § 21.2-21.15, infra.  A conviction is not required to trigger a number of these grounds, even if your client has a green card (i.e., LPR status).  See § § 21.5-21.7, 21.9-21.10, 21.15, infra.


                Do Not:

Æ       Assume that a misdemeanor conviction is immigration safe.[1]

Æ       Assume that an expungement will erase the conviction.[2]

Æ       Assume that your client is safe if there is no conviction.[3]



ü       Avoid a conviction that involves trafficking in a controlled substance.

ü       Be aware of how your Circuit treats simple possession offenses.

ü       Get your client involved in a drug treatment program.[4]

ü       Be aware that an “immigration safe” plea may not protect a client who illegally re-enters the United States.[5]

ü       Know whether your client needs to avoid inadmissibility or deportability.[6]

ü       Let your client know that while an effective disposition might avoid deportation, the client still may not safely leave the United States until they naturalize, or the client may be permanently excluded even if s/he has a green card.

ü       Try to obtain a dismissal of charges without entering a plea or making an admission of sufficient facts to warrant a conviction.[7]


Possible defense strategies include:


·             Avoiding a conviction entirely.[8]

·             Avoiding identification in the record of the controlled substance involved, or pleading to a substance not listed in the federal schedules.[9]

·             Pleading to an offense not related to drug trafficking.[10]

·             Pleading to a state offense that does not exist under federal law.[11]

·             Pleading to accessory after the fact, misprision of a felony, or solicitation.[12]

·             Pleading to simple possession.[13]

·             Pleading to simple possession of under 30 grams of marijuana.[14]

·             Obtaining an expungement or post-conviction relief.[15]


Remember that different clients will need different solutions; there is no one universal solution, not even dismissal.  Given the broad coverage of the various drug-related grounds of removal, the goal of defense counsel may be to minimize the effects of the conviction or conduct, to allow the noncitizen to apply for relief in immigration court.


                This chapter is organized somewhat differently than the other chapters in Part II of this book.  Sections 21.2-21.15 discuss the controlled substances grounds of removal.  Sections 21.17-21.29 discuss common criminal offenses, and outline how these offenses affect removability.  Sections 21.30-21.37 discuss certain “safe havens” specifically relevant to controlled substances convictions.  Sections 21.38-21.40 discuss how the misdemeanor/felony level and sentence imposed can affect removability.

[1] Even a misdemeanor is sufficient to cause immigration problems in most cases.  See § § 21.18, 21.39, infra.

[2] This only works for a first-time conviction for simple possession (and some lesser offenses), and only in federal criminal court or within the Ninth Circuit.  See § 21.36, infra.

[3] There are a number of conduct-based grounds of removal that do not require a conviction.  See § § 21.3, 21.11, infra.

[4] See § § 21.10, 21.15, infra.

[5] See § 21.40, infra.

[6] See § 15.5, supra.

[7] To keep the DHS from using the arrest against your client.  See § 21.5, infra.

[8] See § 21.30, infra.

[9] See § 21.34, infra.

[10] See § § 21.12, 21.24, infra.

[11] See § 21.12, infra.

[12] See § 21.32, infra.

[13] See § § 21.17-21.20, 21.39, infra.

[14] See § 21.35, infra.

[15] See § 21.36, infra.



Here is a link to a new practice advisory discussing defenses to removal for immigrants with convictions under common Florida drug statutes: Thanks to Rebecca Sharpless.