By Reeves & Associates
A non-citizen’s defense against deportation should begin the moment he or she is charged with a controlled substance violation. The immigration laws of the United States are extremely unforgiving to non-citizens who have been convicted of a crime involving drugs.
For a non-citizen who is a lawful permanent resident of the United States, a single conviction for a crime involving a controlled substance may result in his detention by the Department of Homeland Security, the loss of lawful permanent resident status, and deportation from the United States. For a non-citizen without legal status in the United States, a single conviction for a crime involving a controlled substance may not only lead to detention and deportation, but also to a permanent bar to immigrating to the United States.
Defending against these possible actions – detention by the government, the loss of one’s lawful permanent resident status, deportation, and permanent ineligibility to immigrate to the United States all require the aggressive assistance of an experienced and knowledgeable immigration attorney prior to a non-citizen even entering into criminal court. While the goal of any criminal defense is to avoid a criminal conviction, in many instances individuals who are charged with a crime accept a deal which is offered by the government to avoid the risk of more severe penalties if he or she is convicted after a trial.
While such deals may minimize the criminal penalties which result from a conviction, the same deals may also result in deportation. The immigration laws of the United States are very complex and constantly changing. Because of this, even a very well qualified criminal defense attorney may not be aware of the immigration consequences of entering into a deal with the government. Therefore, it is important for any non-citizen who has been charged with a controlled substance offense to retain an immigration attorney to assist from the very beginning of his or her criminal case. An experienced and knowledgeable immigration attorney will be able to work with a non-citizen’s criminal attorney to ensure that any actions taken by the criminal attorney, to include entering into a deal with the government, will not create any legal basis for deportation.
If a non-citizen has already been convicted of a single crime involving a controlled substance, he or she may still be able to avoid the harsh immigration consequences attached to such a conviction. Generally, a single conviction for a crime involving a controlled substance will render a non-citizen ineligible to immigrate to the United States regardless of the amount of the controlled substance involved in the conviction, the age of the conviction, or the country in which the conviction occurred. Only one such exception to this general rule exists under the Immigration and Nationality Act (INA) – a waiver is available to those non-citizens who have a single conviction for possessing thirty grams or less of marijuana. However, the granting of such a waiver is not guaranteed. The non-citizen must present sufficient evidence in a manner that ensures the greatest likelihood that the waiver will be approved.
For non-citizens who are lawful permanent residents, there are avenues that can negate or cancel an individual’s deportation from the United States. If a non-citizen has been a lawful permanent resident for at least five years, has resided in the United States for at least seven years after having been admitted in any legal status, and he or she has not been convicted of an “aggravated felony,” he or she may apply for a waiver before an immigration judge. While many crimes involving controlled substances are not “aggravated felonies” as defined under the INA, some are.
Offenses involving the trafficking of a controlled substance are almost always found to be aggravated felonies, while most offenses involving the simple possession or use of a controlled substance generally are not. The only way to establish if a non-citizen is eligible for such a waiver case before an immigration judge is to consult with an experienced and knowledgeable immigration attorney. Such an attorney will be able to determine eligibility for such a waiver, and to effectively prepare and present such a waiver to an immigration judge in a manner which optimizes an individual’s chance of being granted such a waiver.
Some non-citizens may not qualify for a waiver to negate the immigration consequences of a conviction involving a controlled substance violation. These individuals will need to return to criminal court to seek to modify or eliminate their conviction or sentences. This is a difficult process. The immigration laws which address post-conviction relief in criminal courts are very precise and rigid. An experienced and knowledgeable immigration attorney should work with a qualified criminal attorney regarding post-conviction relief to ensure that the relief is effective under the applicable immigration laws.
The immigration laws of the United States unquestionably are written to afford very limited options for a non-citizen who has been convicted of a crime involving a controlled substance. Therefore, it is imperative that any non-citizen who has been charged with, or convicted of, a controlled substance violation immediately consult with an experienced and knowledgeable immigration attorney. The day that a non-citizen is charged with a controlled substance violation must be the day that he or she begins a defense against deportation. Even if a non-citizen has already been convicted of a crime involving a controlled substance, it is important to act quickly to address its adverse immigration consequences. Under the immigration laws of the United States, time does not heal all wounds. In fact, some wounds may worsen over time.