Aliens who commit drug offenses may become inadmissible or deportable. Inadmissibility means that an alien is ineligible to receive a visa or he cannot be admitted into the U.S. based on his conduct or convictions. Deportability means that an alien who was previously admitted could be removed based on his conduct or convictions.
The drug related grounds of inadmissibility are the following. First, under INA 212(a)(1)(A)(iv), a drug abuser or addict is inadmissible. There is no waiver for immigrants who are drug abusers or addicts. A waiver eliminates the effects of a conduct or conviction and renders an alien admissible.
Second, under INA 212(a)(2)(A)(i)(II), an alien convicted of violating any law relating to a controlled substance is inadmissible. An example would be simple possession of marijuana or methamphetamine. However, an alien would also be inadmissible even though he was not convicted of a controlled substance violation if he admitted committing such a violation. A waiver is available but only if the violation relates to a single offense of simple possession of 30 grams of marijuana. There is no waiver for immigrants if it involves any other controlled substance.
Third, under INA 212(a)(2)(C), any alien who, a consular or immigration officer knows or has reason to believe, is an illicit trafficker in any controlled substance is inadmissible. It is not necessary that the alien admitted to or was convicted of an offense. There is no waiver for inadmissible immigrants under this provision.
The drug related grounds of deportability are the following. First, under INA 237(a)(2)(B)(i), an alien who at any time after admission has been convicted of violating any law relating to a controlled substance, other than a single offense involving possession of 30 grams of marijuana for personal use, is deportable. This is similar to the controlled substance ground for inadmissibility but there are significant differences. A conviction is necessary for deportability but admitting to the commission of a violation may give rise to inadmissibility. An alien who is inadmissible for a single offense of simple possession of 30 grams of marijuana may apply for a waiver but an alien who is deportable for the same offense is automatically exempted under the personal use exception. Second, under INA 237(a)(2)(B)(ii), a drug abuser or addict is also deportable.
Third, under INA 101(a)(43)(B), illicit trafficking in a controlled substance is an aggravated felony, which would bar an alien from most forms of relief. There are two distinct drug related aggravated felonies under this provision, illicit trafficking and drug trafficking. In Matter of Sanchez-Cornejo, 24 I&N Dec. 273 (BIA 2010), the Board of Immigration Appeals defined illicit trafficking as a conviction involving the unlawful trading or dealing of any controlled substance. Drug trafficking, on the other hand, refers to a felony punishable under any of the three federal drug laws which include the Controlled Substance Act (CSA). A felony is a crime which carries a maximum term of imprisonment exceeding one year. A state drug offense qualifies as a drug trafficking crime if it would be punishable as a felony under federal drug laws.
Let’s look at an example of a drug trafficking crime. Under 21 USC 844(a), a conviction for simple possession of a controlled substance is punishable for a prison term of less than one year. Hence, it is not a felony. However, under the same provision, a conviction for simple possession after a prior federal or state drug conviction is punishable for a prison term of up to two years. This so called recidivist simple possession is a felony and thus a drug trafficking crime.
Does that mean that a second conviction for simple possession is always a drug trafficking crime? Not necessarily. In Caruchi-Rosendo v. Holder, 130 S.Ct. 2577 (2010), the Supreme Court held that a second simple possession conviction is a felony only if the alien was notified during his trial that his prior conviction would be used to enhance the second charge and he was given an opportunity to challenge the validity of the prior conviction. Without complying with these procedural requirements, the second sentence cannot be enhanced into a felony.
Unlike drug dealing, drug trafficking crimes do not easily fit our everyday understanding of a trafficking offense. In Moncrieffe v. Holder, 569 U.S. ___ (2013), the Supreme Court clarified the nature of a distribution offense. The case involved a conviction for possession of marijuana with intent to distribute under a Georgia statute which was also a federal offense under 21 USC 841(a). The government argued that a marijuana distribution offense is a felony but the Court recognized an exception and held that the distribution of a small amount of marijuana for no remuneration is not a felony.
Both of these Supreme Court cases involved possession of small amounts of marijuana but as you can see, somewhere in the CSA the government found arguments that could have changed the nature of a possession offense into a drug trafficking crime. Be very careful when you plead to any drug offense. Not everything is as simple as it appears to be.
