Criminal Defense of Immigrants


§ 21.17 III. Simple Possession and Lesser Offenses

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Simple possession and other minor drug offenses such as possession of paraphernalia, and being under the influence of a controlled substance are extremely common.  Because of the tension between pressure to win the “war on drugs” and the relatively minor nature of these offenses, the issues surrounding immigration treatment of these offenses have been the subject of much litigation.  The law in this area varies widely from circuit to circuit, and quickly changes.  Therefore, counsel should be especially vigilant in keeping up with the development of the law in this area.


                Generally, even a first-time simple possession offense can trigger both inadmissibility and deportability.  A conviction is not required to trigger inadmissibility, but is required for deportability.[140]  The exact effect of a conviction can vary depending upon the jurisdiction, and whether the offense is a first or subsequent offense.[141]  The effect of a simple possession conviction can also vary depending on whether the noncitizen is facing deportation or prosecution for illegal re-entry.[142]  Some marijuana offenses are excepted or can be waived.[143]  Expungement of a first-time simple possession conviction is effective to eliminate a conviction for immigration purposes only if the expungement occurs under Federal law, or in a state within the Ninth Circuit.[144]


                Counsel should also be aware of other, generally applicable Safe Havens and means to avoid inadmissibility and/or deportability on the basis of a controlled substances offense.  See § § 21.30-21.37, infra.


[140] Compare INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), with INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).  See § 21.5, infra.

[141] See § § 21.19-21.20, infra.

[142] See § § 21.18, 21.40, infra.

[143] See § 21.35, infra.

[144] See § 21.36, infra.



Counsel can argue that Matter of Eslamizar applies to civil violations for possession of marijuana as well as to crimes of moral turpitude. A civil violation arguably should not constitute a ground of inadmissibility because it would not be a crime in the jurisdiction where the conduct occurred. 22 CFR 40.21; Matter of K,7 I. & N. Dec. 594 (BIA 1957); Pazcoguin v. Radcliffe, 922 F.3d 1209 (9th Cir. 2002). The regulation only imposes this requirement for CMTs, but judicial decisions appear to extend it to other inadmissibility grounds as well. The government could argue the language of 237(a)(2)(B)(i) specifies a violation of any "law or regulation" relating to a controlled substance means it need not be a crime. However, regulations can create crimes, so counsel can still argue that the offense must still be considered a "crime" in order to trigger removability. Thanks to Jonathan Moore.

Fifth Circuit

United States v. Betancourt, __ F.3d __ (5th Cir. Oct. 9, 2009) (federal conviction under 21 U.S.C.A. 841(a)(1), (b)(1)(B), for possession of more than 100 kilograms of marijuana does not require proof beyond a reasonable doubt that defendant knew the type and quantity of drugs in his possession).