Criminal Defense of Immigrants


§ 21.18 (A)

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(A)  Controlled Substances Offense.  A conviction for simple possession will generally trigger both inadmissibility and deportability.  Admitting to simple possession will also trigger inadmissibility, but not deportability.


                A first time simple possession conviction for possession of less than 30 grams of marijuana is excepted from the controlled substances ground of deportation.[145]  There is no need to seek a waiver.  The same conviction does trigger inadmissibility, but a noncitizen subject to that ground can apply for a waiver under INA § 212(h).[146]  This may also apply to simple possession of hashish. See § 21.35, 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.[147]  If the record does not specify the controlled substance possessed, the noncitizen may be able to avoid deportability, but not inadmissibility.[148]

[145] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (“. . . other than a single offense involving possession for one’s own use of thirty grams or less of a marijuana.”).

[146] See § 24.29, infra.

[147] See § 21.32, infra.

[148] See § 21.34, infra.



Ninth Circuit

Pagayon v. Holder, 642 F.3d 122, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of possession of a controlled substance, under Health & Safety Code 11377(a), constituted a controlled substances conviction, triggering deportation under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), where respondents admission in removal proceedings he pleaded to guilty as charged established the drug involved as methamphetamine which was listed in federal drug schedules).