6 THINGS YOU NEED TO KNOW REGARDING THE EXTREMELY HARSH IMMIGRATION CONSEQUENCES OF DRUG CONVICTIONS
- A drug conviction need not be a felony to trigger deportation. Indeed, a misdemeanor conviction for mere simple possession or being under the influence of a controlled substance is potentially enough to permanently banish one from the United States. Under U.S. immigration law, any conviction related to controlled substance as defined under Federal law is a potentially deportable offense.[1]
- A drug conviction involving the sale of a controlled substance is likely an “aggravated felony” under immigration law, the most serious crime classification with the most severe immigration penalties. Essentially, any drug crime with a “trafficking element” is an aggravated felony.[2] Individuals convicted of drug trafficking aggravated felonies are ineligible for all forms of discretionary immigration relief from deportation including cancellation of removal, asylum, adjustment of status and voluntary departure. To understand what that means, consider the case of a lawful permanent resident (“green card” holder) who is convicted of a non-aggravated felony drug crime, say for example, simple possession of cocaine. Although a deportable offense, it is not an aggravated felony and the individual could still potentially keep his or her green card by applying for cancellation of removal – a form of relief available to lawful permanent residents who have had their green cards for at least five years, resided in the U.S. continuously for at least 7 years after having been admitted in any status and whom have not been convicted of an aggravated felony.[3] In such cases, an Immigration Judge has discretion to “cancel” deportation and allow the applicant to keep his or her green card. The applicant can submit evidence and testimony regarding family ties to the United States, work history, service to the community, rehabilitation and hardship in the event of deportation. By contrast, no such relief is available to a person convicted of drug trafficking aggravated felony. Often, the only form of relief available to individuals convicted of a drug trafficking crime is protection under the Convention Against Torture – a very difficult application to get approved since it requires proof that the applicant would more likely than not suffer torture by or with the acquiescence of the government if removed.[4]
- Non-citizens placed into immigration custody as a result of non-violent drug convictions are subject to mandatory detention and must remain detained for the duration of their removal proceedings. [5] The drug conviction does not have to be one involving the sale of a controlled substance. A misdemeanor conviction for simple possession or being under the influence of a controlled substance is enough to trigger the mandatory detention provisions. Conversely, a single misdemeanor conviction for domestic violence or theft (where the sentence is under 180 days) does not disqualify an immigrant detainee from getting bond.[6] Nor does a misdemeanor conviction for driving under the influence of alcohol.[7]
- Individuals convicted of theft or domestic violence have a better chance at qualifying for a green card than people who have been convicted of non-violent drug offenses. Undocumented individuals applying for a green card based on a family or employment based petition must demonstrate that they are admissible to the U.S. A simple non-violent drug possession crime renders a non-citizen inadmissible to the United States.[8] Similarly, a conviction for a crime involving moral turpitude (which typically includes theft, domestic violence, aggravated assault and fraud crimes) also makes a non-citizen inadmissible.[9] However, inadmissibility stemming from crimes involving moral turpitude can be waived if the applicant demonstrates either that (1) the conviction occurred more than 15 years ago and the applicant is rehabilitated and not a danger to the national welfare, safety or security of the U.S.; or (2) deportation or exclusion would result in extreme hardship to a spouse, parent or child of the applicant who is U.S. Citizen or lawful permanent resident.[10] Conversely, drug crimes cannot be waived except in the case of a single conviction for simple possession of 30 grams or less of marijuana.[11] In effect, U.S. immigration law is more forgiving in the case of domestic violence than it is with respect to non-violent drug offenses.
- The government is aggressively pursuing deportation cases against individuals with drug offenses. In the last five years alone, 260,000 people have been deported from the United States for drug offenses.[12] A recent report by Human Rights Watch, “A Price Too High: U.S. Families Torn Apart by Deportations for Drug Offenses,” reveals that “[d]eportations after convictions for drug possession in particular have spiked, increasing 43 percent from 2007 to 2012” and that “[f]or more than 34,000 deported non-citizens [removed during this time period], the most serious conviction was for marijuana possession.”[13] Grace Meng, the author of the report states that “[t]he Obama administration has explicitly recognized the many failures of the US criminal justice system, and particularly its disproportionate impact on minority and poor communities. But by designating all immigrants convicted in that system as dangerous criminals, the administration is perpetuating these failures and devastating many of the same communities.”[14]
- The government has the burden to establish by clear and convincing evidence that a lawful permanent resident has been convicted of a deportable crime.[15] Not every drug conviction is a deportable offense. The conviction must constitute an offense punishable under Federal law. In regards to drug crimes, most people are prosecuted under state criminal law, which often regulates a broader array of controlled substances than that punished under Federal law.[16] If you have been convicted of a drug offense and are now facing deportation charges as a result, it is the government’s burden to prove to the Immigration Judge that you have been convicted of a drug crime punishable under Federal law. In making this determination, an Immigration Judge can only consult the language of the statute under which you were convicted and a very limited and specific set of court records in your criminal case file.[17] This generally does not include police or probation reports. Again, ICE must establish that you are removable by clear and convincing evidence. Where the record is vague and inconclusive, the government fails to meet its burden and removal proceedings must be terminated.[18] If you are facing deportation as a result of a drug conviction, call our office today for an initial consultation to protect your rights and begin exploring your options.
[1] See INA § 237(a)(2)(B)(i).
[2] See INA §§ 237(a)(2) (A)(iii); 101(a)(43)(B).
[3] See INA §240A(a).
[4] See Matter of J-F-F-, 23 I&N Dec. 912, 917 (AG 2006) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). See also 8 C.F.R. § 208.16(c)(2).
[5] See INA §236(c).
[6] See id; INA §212(a)(2)(A)(ii)(II).
[7] See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999) (holding that simple DUI is not a crime involving moral turpitude).
[8] See INA §212(a)(2)(A)(i)(II).
[9] See INA §212(a)(2) (A) (i)(i).
[10] See INA §212(h)(1)(A)-(B).
[11] Id.
[12] See Ed Pilkington “260,000 deported from U.S. over five years for drug offenses, says report,” The Guardian, June 16, 2015, http://www.theguardian.com/us-news/2015/jun/16/260000-deported-from-us-over-five-years-for-drug-offences-says-report
[13] See “US: Drug Deportations Tearing Families Apart, Spike in Cases, Many for Minor Offenses,” Human Rights Watch, June 16, 2015, http://www.hrw.org/print/news/2015/06/16/us-drug-deportations-tearing-families-apart
[14] Id.
[15] See INA §240(c)(3)(A). See also Woodby v. INS, 385 U.S. 276 (1966) (holding that the government must establish deportability by “clear, convincing and unequivocal evidence.”).
[16] California is one such state. See Coronado v. Holder, No. 11-72121, 2014 WL 983621 (9th Cir. March 14, 2014); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007).
[17] See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013); United States v. Leal, 680 F.3d 1160, 1168 (9th Cir. 2012).
[18] See Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007).
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