Criminal Defense of Drug Cases

 

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 N. Tooby & J. Rollin, Criminal Defense of Immigrants §§ 21.2-21.15 (2007)(hereinafter Criminal Defense).  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 Criminal Defense §§ 21.5-21.7, 21.9-21.10, 21.15.

Do Not:

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

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

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

Do:

• Advise your client of the actual immigration consequences of a conviction.

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

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

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

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

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

• 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.

• 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.

 

 

 

Immigration Consequences of Drug Cases

 

Noncitizen clients may be subject to inadmissibility or deportability or both on the basis of a drug offense.  The drug-related grounds of each of these immigration consequences are described below.  Many forms of relief from removal are barred to noncitizens who have been involved with drugs, whether or not they are convicted.[16]

 

 

 

Inadmissibility

 

All noncitizens, even those with green cards, can be subject to the grounds of inadmissibility.  Inadmissibility is generally triggered when the noncitizen is outside the United States, seeking to enter, or when the noncitizen is trying to change immigration status (e.g., get a green card).  The burden of proof is usually on the noncitizen to show by clear and convincing evidence that s/he is not subject to a ground of inadmissibility.  For more on inadmissibility, see Criminal Defense Chapter 18.

There are seven separate drug-related grounds of inadmissibility that can prevent your clients from re-entering the United States if they leave, or prevent them from getting a green card:

1. Controlled Substances Conviction

2. Admission of a Controlled Substances Offense

3. Crime of Moral Turpitude Conviction

4. Admission of a Crime of Moral Turpitude

5. “Reason to Believe” Noncitizen is or was a Drug Trafficker

6. Family Members of Noncitizens DHS has “Reason to Believe” is or was a Drug Trafficker

7. Drug Abuse or Addiction

Only two of the seven [(1) and (3)] require a criminal conviction.  There are very few forms of relief available to waive drug offenses as grounds of inadmissibility.  See Criminal Defense § 21.16.

Another ground of inadmissibility, for noncitizens convicted of two or more criminal offenses of any type for which the aggregate sentences to confinement were five years or more, may also apply to your client.[17]  See Criminal Defense § 18.15.

 

 

 

Deportability

Controlled substances convictions are some of the most dangerous for noncitizens who hope to remain in the United States, since there are four different grounds, most of them quite broad, upon which a noncitizen with a controlled substances offense may be found deportable by the immigration authorities:

• Aggravated Felony Conviction

• Controlled Substances Conviction

• Crime of Moral Turpitude Conviction

• Drug Abuse or Addiction

Of these four, all but the drug abuse or addiction ground require a conviction.  Each ground also requires that the offense occur “after admission” to the United States.[18]

 

 

 

Solutions to Controlled Substances Immigration Problems

 

Immigration lawyers must learn the rules so they can argue in immigration court that a given conviction is not a controlled substances conviction felony, and so avoid the controlled substances conviction immigration consequences.  These arguments are given in Aggravated Felonies, supra.

 

Immigration lawyers must also check the record of conviction very carefully to see if the original criminal lawyer succeeded in obtaining a non- controlled substances conviction in the first place.

 

Finally, where a conviction does qualify as an aggravated felony, the immigrant may need to seek post-conviction relief in immigration court, so the controlled substances conviction can be vacated on a ground of legal invalidity, which will eliminate the conviction and avoid its adverse immigration consequences.  See N. Tooby, California Post-Conviction Relief for Immigrants (2009); N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004).

 

This office can assist immigrants who are charged with, or have been convicted of, a controlled substances offense in several ways:

 

Information

We provide the most extensive collection of information on what is and is not a controlled substances conviction in the world, in our newsletters, practice manuals, website, and seminars.

 

Consultation

We can offer a consultation, and examine the records from the criminal court, to give a reliable opinion on whether a given conviction is or is not a controlled substances conviction.  We can also offer arguments that an immigration lawyer can use in immigration procedures to argue that the conviction does not qualify as a controlled substances conviction.

 

Elimination of the Conviction

If a conviction is causing damage as a controlled substances conviction, we can seek post-conviction relief anywhere in the country to reopen the criminal case, vacate the controlled substances conviction, and obtain a dismissal or alternative plea bargain that does not cause these damaging immigration consequences. Learn more about our Legal Services.

 

 

 

Resources for Drug Cases

 

The aggravated felony drug trafficking ground of deportation is covered at Criminal Defense § 21.12.

 

The controlled substances conviction ground of deportability is discussed in Criminal Defense § 21.13.  All of the immigration aspects of drug cases are collected in Criminal Defense, Chapter 21.

 

Safe havens for drug cases are discussed in N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005)§§ 7.64-7.71 (aggravated felony drug trafficking convictions);.§§ 7.138-7.146 (controlled substance convictions); § 7.137 (drug abuser or addict ground of deportation).

 

Controlled substances as crimes of moral turpitude are discussed at N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude (2008), §§ 9.6-9.9.

 

[1] Even a misdemeanor is sufficient to cause immigration problems in most cases.  See Criminal Defense §§ 21.18, 21.39.
[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 Criminal Defense § 21.36.
[3] There are a number of conduct-based grounds of removal that do not require a conviction.  See Criminal Defense §§ 21.3, 21.11.
[4] See Criminal Defense §§ 21.10, 21.15.
[5] See Criminal Defense § 21.40.
[6] See Criminal Defense § 15.5.
[7] To keep the DHS from using the arrest against your client.  See Criminal Defense § 21.5.
[8] See Criminal Defense § 21.30.
[9] See Criminal Defense § 21.34.
[10] See Criminal Defense §§ 21.12, 21.24.
[11] See Criminal Defense § 21.12.
[12] See Criminal Defense § 21.32.
[13] See Criminal Defense §§ 21.17-21.20, 21.39.
[14] See Criminal Defense § 21.35.
[15] See Criminal Defense § 21.36.
[16] See Criminal Defense § 21.16, Chapter 24.
[17] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).
[18] See Criminal Defense § 17.8.