Criminal Defense of Immigrants

A noncitizen is inadmissible who has been convicted 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 (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)”[18] 

This ground has the following elements:

(1)       a conviction for violation

(2)       or conspiracy or attempt to violate

(3)       any law or regulation

(4)       of any state, federal, or foreign law

(5)  relating to

(6)  a controlled substance, as defined in 21 U.S.C. § 802.

This ground can alternatively be met where the noncitizen admits to committing an act that meets these elements.  See § 21.5, infra.  Therefore, vacating or expunging the conviction may not be sufficient to avoid inadmissibility, even though it would be sufficient to avoid deportation.  See § 21.36, infra.

                The Ninth Circuit, and others, have found that a conviction for a nonsubstantive offense other than attempt or conspiracy does not trigger this ground of inadmissibility.  See § 21.32, infra. 

Since this ground can be triggered by any violation of any law or regulation of a listed jurisdiction, counsel should be careful to avoid conviction of even a minor regulatory offense relating to a federally listed controlled substance.  See § 21.13, infra.

While this ground includes violations of state, federal or foreign law, counsel can argue that convictions for violating local, tribal, or military law do not trigger this ground.  See § 7.26, supra.

                Even where the actual offense involved drugs, counsel may try to plead to another offense that is in no way “related” to controlled substances, such as possession of a firearm.  See § 21.33, infra. 

                The controlled substance involved must be on a federal list.  When faced with a ground of inadmissibility, the noncitizen will usually bear the burden of proof.  To avoid inadmissibility, counsel would therefore need to plead to a specific controlled substance that is not on the federal controlled substances schedules.  See § 21.34, infra.

[18] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).