- Introduction: Controlled Substance-Related Offenses, Inadmissibility, and Deportability
- Federal Controlled Substance Schedules
- Controlled Substance Inadmissibility
- Controlled Substance Deportability
- Immigration Ramifications of Criminal Charges for Controlled Substances
- Administrative and Judicial Precedent Relating to Controlled Substance Violations
- Conclusion and Guidance
The Immigration and Nationality Act (INA) proscribes harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for inadmissibility for controlled substance violations and trafficking in controlled substances are found in section 212 of the INA, whereas deportability grounds for those violations are found in section 237. In this article, we will explore various issues relating to inadmissibility and deportability for controlled substance violations. After reading, please see our supplementary article that includes interesting caselaw from the Second, Third, Fifth, and Ninth Circuits regarding controlled substance-related inadmissibility and deportability. To learn about the somewhat related inadmissibility and deportability grounds for trafficking in controlled substances, please see our full article [see article].
In order for a criminal conviction for a controlled substance violation or trafficking in controlled substances to trigger inadmissibility or deportability, the controlled substance in question must be listed on one of the five federal Schedules defined in 21 U.S.C. 802. The specific substances that compose the federal Schedules are found in 21 C.F.R. 1308. The following links will direct you to the current federal Schedules (as of April 4, 2016):
- Schedule I — 21 C.F.R. 1308.11 [link]
- Schedule II — 21 C.F.R. 1308.12 [link]
- Schedule III — 21 C.F.R. 1308.13 [link]
- Schedule IV — 21 C.F.R. 1308.14 [link]
- Schedule V — 21 C.F.R. 1308.15 [link]
Administrators and judges often must determine whether a state drug offense covers only those substances listed on the federal schedules for section 212 and 237 purposes. We will discuss these precedents in this article.
Section 212 of the INA contains inadmissibility provisions for offenses related to controlled substances and trafficking in controlled substances. In this section we will review the relevant statutes.
The general inadmissibility ground for controlled substance violations is found in section 212(a)(2)(A)(i)(II) of the INA. The statute renders inadmissible “any alien convicted of, or who admits having committed, or who admits to committing acts which constitute essential elements of -“
a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 C.F.R. 802]).
In general, section 212(a)(2)(A)(i)(II) inadmissibility attaches for life, making it a particularly virulent inadmissibility ground. However, if the alien has only a single offense for simple possession of 30 grams or less of marijuana, he or she may be eligible for a section 212(h) waiver of inadmissibility [see article]. It is important to note, however, that a single offense for simple possession of 30 grams or less of marijuana does trigger section 212(a)(2)(A)(i)(II) inadmissibility, and that an alien with such an offense should consult with an experience immigration attorney to discuss section 212(h) eligibility.
Also of note, certain offenses involving drug paraphernalia, depending on the wording of the statute involved, may trigger section 212(a)(2)(A)(i)(II) inadmissibility. We will discuss relevant administrative and judicial precedent on the issue later in this article [see section].
As we noted, there is no “petty offense exception” for drug offenses found in section 212 of the INA. This position was taken by the Department of State (DOS) as reported in 66 No. 36 Interpreter Releases 1042-43 (September 18, 1989). However, the DOS's Foreign Affairs Manual (FAM) explains in 9 FAM 302.4-2(B)(5) that if “[a]n alien who is convicted of or who admits to having committed or who admits committing acts which constitute the essential elements of a minor drug offense(s) relating to simple possession of controlled substances … shall not be considered ineligible for any visa based solely upon any such conviction or admission if the acts which are the subject of the conviction or admission occurred while the alien was under the age of eighteen.” The FAM explicitly excludes from this “convictions or admissions relating to drug trafficking, importing/exporting, and manufacturing.” However, it is important to remember that only DOS officers are bound by the guidance found in the FAM. An alien who may be described in 9 FAM 302.4-2(B)(5) should consult with an experienced immigration attorney.
Section 237 of the INA contains the deportability provisions for offenses related to controlled substances and trafficking in controlled substances. The deportability provisions generally mirror the inadmissibility provisions that we discussed in the prior two sections and apply to those whose offenses occur after admission or adjustment of status. However, as pertains to the inadmissibility provisions above, it is important to remember that under section 237(a)(1)(A), “[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.”
The general deportability ground for controlled substance violations after admission is found in section 237(a)(2)(B)(i) of the INA. The statute holds as deportable:
[A]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 U.S.C. 802]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
Section 237(a)(2)(B)(i) is markedly similar to section 212(a)(2)(i)(II) inadmissibility. The same rules we discussed in that section generally apply to section 237(a)(2)(B)(i). However, it is important to note a slight difference in the “exception” for possession of small amounts of marijuana. Section 212(a)(2)(i)(II) does not mention marijuana specifically, and for inadmissibility purposes, a waiver must be obtained for such possession under section 212(h). However, the deportability ground explicitly states that an alien who is convicted of a single offense involving possession of 30 grams or less of marijuana for personal use is not deportable. This distinction means that an alien admitted for lawful permanent residency will not be deportable for such an offense.
Although we will not discuss in detail in this article, it section 237(a)(2)(B)(ii) of the INA renders deportable any alien who is, or has at any time been , an drug addict or drug abuser.
The ramifications of a conviction for a violation involving controlled substances. Accordingly, if an alien is ever facing criminal charges or proceedings for a violation involving controlled substances, it is imperative to consult with an experienced immigration attorney to understand the charges both in the criminal and the immigration context.
An alien who is not advised of the adverse immigration consequences of entering into a guilty plea may be eligible for relief based on ineffective assistance of counsel under the 2010 U.S. Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473 (2010) [PDF version]. However, the Supreme Court subsequently limited the application of Padilla only to guilty pleas entered into after Padilla was rendered on March 31, 2010 in Chaidez v. U.S., 133 S.Ct 1103 (2013) [PDF version].
Much of the litigation pertaining to both inadmissibility and deportability for controlled substance violations centers around the “relating to a controlled substance” language found in both provisions. The “relating to” language has consistently been found — with certain limits — to broaden the applicability of both statutes to a variety of offenses so long as they clearly and unambiguously implicate a federal controlled substance. In the Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988) [PDF version], the Board of Immigration Appeals (BIA) noted that the “relating to” language “significantly broadened the types of drug offenses which render an alien deportable or excludable” (note the case regarded a previous statutory scheme with the same “relating to” language). In the Matter of Esqueda, 20 I&N Dec. 850 (BIA 1994) [PDF version], the Board held that “immigration consequences may now result from a conviction under a law relating to a controlled substance that contains no element of mens rea (see our article on Leocal v. Ashcroft to learn about mens rea requirements [see article]).
“Relating to” may encompass convictions involving drug paraphernalia so long as a federal controlled substance is necessarily implicated. The Board held in the Matter of Espinoza, 25 I&N Dec. 118 (BIA 2009) [PDF version] that a state conviction for drug paraphernalia meets the standard for “relating to” because it “involves the drug trade in general.” However, the Matter of Espinoza was limited by the Supreme Court in Mellouli v. Lynch, 135 S.Ct 1980 (2015) [see full article]. In Mellouli, the Supreme Court held that a state conviction in Kansas involving drug paraphernalia did not trigger deportability because the Kansas statute in question contained several substances that were not on the list of federal controlled substances. Because the Supreme Court applied the categorical approach [see article], it held that the state statute must categorically implicate only substances that are on the list of federally controlled substances. A “nearly complete overlap” between the substances in a state statute and the federal schedules is not sufficient. The Board held in the Matter of Martinez Espinoza, 25 I&N Dec. 118, 120-22 (BIA 2009) [PDF version] that a 212(h) waiver is available for a paraphernalia conviction if it “relates to a single offense of simple possession of 30 grams or less of marijuana.”
In general, if a conviction is for a substance that is not on the list of federal controlled substances, it will not trigger inadmissibility or deportability under the sections of the INA discussed in this article. For example, the Fourth Circuit held in Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. 2005) [PDF version] that a conviction for possession of khat did not trigger inadmissibility because khat itself is not a federal controlled substance and no testing was performed on the substance to ascertain whether it contained a federal controlled substance.
22 C.F.R. 40.21(a)(1) explains the requirements for an admission of committing acts that constitute a crime of moral turpitude (CIMT). The regulation derives from BIA precedent found in the Matter of K, 7 I&N Dec. 594, 598 (BIA 1957). For a CIMT, the admission must be of the commission of acts which constitute the essential elements of a CIMT. The Matter of K also required that the applicant for immigration benefits must be made aware of the definitions of the essential elements of the offense and that the admission must be voluntary.1 The IFM at 17.17(a) required that an alien must admit to violating a specific statute with reference to the specific statute, and that the admission would have been enough to establish a conviction under said statute.2
The Ninth Circuit held in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) [PDF version] that an alien with a drug conviction that was expunged under the Federal First Offender Act (also applicable to a foreign drug conviction that is expunged) cannot be found to be inadmissible for making an admission of the drug crime that he or she was convicted of. However, the Ninth Circuit found in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) [PDF version] that this does not apply to expunged state conviction.
Second Circuit precedent found in Lennon v. INS, 527 F.2d 187 (2d Cir. 1975) [PDF version] requires that in order for a foreign drug conviction to cause inadmissibility, the foreign statute must require specific intent or mens rea.
The Board held in the Matter of Moncada, 24 I&N Dec. 62, 65 (BIA 2007) [PDF version] that a conviction for simple possession of 30 grams or less of marijuana that has an element require that the possession of marijuana be in prison or other correctional setting does not fall under the deportability exception for simple possession. In the Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) [PDF version], the Board held that an alien who has a conviction for simple possession of 30 grams or less of marijuana enhanced because it occurred in a “drug free zone” is not eligible for a section 212(h) waiver. However, the Fifth Circuit disagreed with the Matter of Moncada in Esquivel v. Lynch, 803 F.3d 699 (5th Cir. 2015) [PDF version] in holding that there is no requirement “that the crime be of the least severe type possible under applicable state law.”
Convictions and admissions pertaining to controlled substances are potentially fatal in the immigration context. Because of this, it is essential for a noncitizen facing charges pertaining to controlled substances to consult with an experienced immigration attorney immediately. In part, this is because what may be best in the criminal context (e.g. a guilty plea to a lesser count) may still prove ruinous to future immigration prospects. It is crucial for a noncitizen to understand both the potential criminal and immigration ramifications that may come with different outcomes in a case involving controlled substances. Adding to the number of complications is that each state has specific laws regarding controlled substances, and furthermore various circuit courts have different precedent regarding the intersection of state controlled substance statutes and controlled substance-related inadmissibility and deportability.
If a noncitizen has been convicted of a controlled substance offense, he or she should consult with an experienced immigration attorney immediately. Depending on the circumstances of the conviction, there may be certain remedies available to the alien in both the criminal or the immigration (e.g. section 212(h) waiver for simple marijuana possession) contexts. It is also important to remember that admissions to drug offenses and foreign drug convictions or admissions to conduct which would violate foreign drug laws may also cause adverse immigration consequences.
To learn about how the Second, Third, Fifth, and Ninth Circuits have interpreted various state controlled substances statutes and applied them in the immigration context, please read our full article on the subject [see article].
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), 109
Resources and Materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 108-114, Print. Treatises & Primers.