- Introduction: Immigration Consequences for Trafficking in Controlled Substances
- Federal Controlled Substance Schedules
- Controlled Substance Trafficking Inadmissibility
- Controlled Substance Trafficking Deportability
- Immigration Ramifications of Trafficking in Controlled Substances
- Administrative and Judicial Caselaw
- Conclusion: Immigration Consequences for Trafficking in Controlled Substances
The Immigration and Nationality Act (INA) has harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for drug trafficking-related inadmissibility and deportability are found in sections 212 and 237 (via section 101) of the INA. In this article, we will examine various issues relating to inadmissibility and deportability on drug trafficking grounds. After reading, please read our supplementary article that discusses precedent from the Second, Third, Fifth, and Ninth Circuits on the issue [see article]. To learn about the related inadmissibility and deportability provisions for controlled substance violations in general, please see our article on that subject [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.
The inadmissibility grounds for traffickers in controlled substances are found in section 212(a)(2)(C)(i)-(ii) of the INA.
Section 212(a)(2)(C)(i) holds as inadmissible any alien who the consular officer or Attorney General has reason to believe-
[I]s or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in [21 C.F.R. 802], or is or has been a knowing aider, abettor, assistor, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so…
Under section 212(a)(2)(C)(ii), “the spouse, son, or daughter of an alien inadmissible under [212(a)(2)(C)(i)] is inadmissible if he or she has, “within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity.”
Section 212(a)(2)(C)(i) inadmissibility attaches for life and cannot be waived by section 212(h). If an immediate relative of an alien subject to section 212(a)(2)(C)(i) is found to be subject to section 212(a)(2)(C)(ii), such inadmissibility will only attach for five years.
The Department of State's (DOS's) Foreign Affairs Manual (FAM), which provides guidance for DOS officers, states in 9 FAM 302.4-2(B)(5) that consular officers may find inadmissible a minor who was convicted of or only admitted to a minor drug offense if the consular officer has a “reasonable belief” that the alien was involved in the trafficking or manufacturing of a controlled substance. The guidance notes in addition that such an alien could be found inadmissible under section 212(a)(1) of the INA for substance abuse.
Unlike section 212 for inadmissibility grounds, section 237 of the INA does not explicitly address drug trafficking. However, section 237(a)(2)(A)(iii) states that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Section 101(a)(43)(B) defines as an “aggravated felony” in the immigration context:
“[I]llicit trafficking in a controlled substance (as defined in [21 U.S.C. 802]), including a drug trafficking crime (as defined in [18 U.S.C. 924(c)]).”
First, it is important to note that the aggravated felony provision for trafficking in controlled substances does not include the “reason to believe” standard that we find in the inadmissibility provision. In this case, a conviction is required. This makes sense in light of the severe adverse immigration consequences for aggravated felony convictions [see article].
As with all deportability grounds, the first condition for triggering deportability for drug trafficking is that the offense take place after admission. The first part of the provision for an aggravated felony for trafficking in controlled substances mirrors the inadmissibility ground that we discussed earlier. The aggravated felony provision adds “including a drug trafficking crime (as defined in [18 U.S.C. 924(c)]). 18 U.S.C. 924(c) imposes mandatory minimum sentences of incarceration for certain crimes, including drug trafficking offenses as defined in 21 U.S.C. 802, when certain firearms are used, brandished, or possessed in the commission of the offense.
Finally, the Controlled Substances Act (CSA) contains certain recidivist offender provisions that are covered but the drug trafficking provisions found in section 101(a)(43)(B) of the INA (see e.g. 21 U.S.C. 844(a)). In such a case, multiple drug possession convictions render the alien convicted of an aggravated felony under the INA.
Being found to be inadmissible or deportable for a drug trafficking offense is extremely detrimental in the immigration context. Drug trafficking inadmissibility attaches for life and cannot be waived by section 212(h) of the INA. Being found to have committed a drug trafficking aggravated felony will generally render an alien ineligible for most forms of immigration relief. While it is always essential that an alien either facing criminal charges or dealing with a criminal conviction consult with an experienced immigration attorney, it is all the more important in a case where drug trafficking inadmissibility or deportability is or may be in play.
It is important to note that an alien who was not advised of the potential immigration ramifications of a guilty plea may be able to argue that he or she was provided with ineffective assistance of counsel under Supreme Court precedent found in Padilla v. Kentucky, 130 S.Ct. 1473 (2010) [PDF version]. However, the Supreme Court limited Padilla to guilty pleas entered into after March 31, 2010 in Chaidez v. U.S., 133 S.Ct 1103 (2013) [PDF version].
In this section, we will review various judicial and administrative preferences regarding the inadmissibility and deportability grounds for trafficking in controlled substances. We will review generally applicable precedent from both the Supreme Court and the Board of Immigration Appeals (BIA). Supreme Court precedent is binding in all jurisdictions in the United States. BIA precedent is applicable to immigration courts nationwide except where a federal appellate court disagrees. To learn about how various circuit courts have dealt with drug trafficking inadmissibility and deportability issues, please read our full article [see article].
In Lopez v. Gonzales, 1727 S.Ct. 625 (2006) [PDF version], the Supreme Court held that in order for a state-level illicit drug trafficking conviction to constitute an immigration aggravated felony under section 101(a)(43)(B) of the INA, the state law that led to the conviction must proscribe conduct punishable as a felony under the trafficking provisions of the federal Controlled Substances Act (CSA). Therefore, if a felony state conviction for drug trafficking proscribes conduct that would not be a felony under the CSA, the conviction is not for an immigration aggravated felony under section 101(a)(43)(B).
The Supreme Court followed Lopez in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) [PDF version], holding that an alien who was convicted in Georgia of possession of marijuana with the intent to distribute was not an immigration aggravated felony. The Supreme Court applied the categorical approach [see article] to the Georgia statute to determine whether it was a categorical match with the parallel provisions in the CSA. In finding that it was not, the Supreme Court noted that the 21 U.S.C. 841(b)(4) (federal statute) contains an exception from 21 U.S.C. 841(b)(1)(D) wherein “any person who violates [the statute] by distributing a small amount of [marijuana] for no remuneration shall be treated as a simple drug possessor.” Because the Georgia statute did not make this distinction, the Supreme Court found that it was impossible to find from the conviction whether the alien had been convicted for conduct that would constitute felony drug trafficking in the CSA.
In order to be found inadmissible or deportable for drug trafficking, a “reason to believe” that an alien engaged in drug trafficking is sufficient notwithstanding a conviction. Multiple courts, including the Second and Ninth Circuits, have found that the “reason to believe” standard is constitutional.
In the Matter of Rico, 16 I&N Dec. 181 (BIA 1977) [PDF version], the Board upheld a finding that an alien was excludable under the “reason to believe” standard (under the statutory scheme existing at the time) after he was found with 162 pounds of marijuana in his car at the United States-Mexico border despite the fact that the criminal charges against him were dropped. In the Matter of Favela, 16 I&N Dec. 753, 754-56 (BIA 1979) [PDF version], the Board upheld a finding that an alien was excludable based on his admission of marijuana smuggling despite the fact that he was convicted of an offense under the Federal Youth Corrections Act rather than for a controlled substance offense. The Board held in the Matter of Rocha, 20 I&N Dec. 944 (BIA 1995) [PDF version] that an alien could only be found deportable based on drug trafficking of the examining immigration officer had reason to believe that the alien was a drug trafficker at the time of entry. However, the Board modified Rocha in the Matter of Casillas-Topete, 25 I&N Dec. 317 (BIA 2010) [PDF version] in holding that an alien may be deportable if an “appropriate immigration officer” (meaning that it does not have to be the examining immigration officer) had reason to believe that the alien was inadmissible at the time of entry. Under Ninth Circuit precedent found in Gomez-Granillo v. Holder, 654 F.3d 826, 828-36 (9th Cir. 2011) [PDF version], “appropriate immigration officials” may include the Immigration Judge and the BIA when an alien is apprehended on the border and placed into an immigration hearing on “reason to believe” chargers rather than being admitted.
In the Matter of U-H-, 23 I&N Dec. 355 (BIA 2002) [PDF version], a case regarding whether there was a “reasonable ground to believe” that an alien was “engaged in, or is likely to engage in, terrorist activity,” the Board stated that “the 'reasonable ground to believe' standard is akin to the familiar 'probable cause' standard.”
In the Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) [PDF version], the Board held that in order for a recidivist drug offender to be considered to have been convicted of an aggravated felony “unless the alien's status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.” In so doing, the Board cited 21 U.S.C. 851(a) which requires for federal purposes that in order for enhanced sentencing to trigger, “unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court … stating in writing the previous convictions to be relied upon.” The Board's decision was reversed Fifth Circuit reversed the Board in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009) (note the Seventh Circuit also disagreed with the Matter of Carachuri-Rosendo), the Supreme Court reversed the Fifth and affirmed the Board's reasoning in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) [PDF version]. Accordingly, in order to be found to have been convicted of an aggravated felony as a recidivist offender, the subsequent drug conviction must explicitly rely upon the original drug conviction.
If a noncitizen is either facing drug charges, has a drug conviction, or engaged in conduct that may put him or her in danger of being found to be inadmissible under the reason to believe standard, he or she should immediately consult with an experienced immigration attorney. All issues relating to controlled substances, trafficking and otherwise, carry the potential for serious adverse immigration consequences. It is important to remember that what may make sense from the criminal standpoint (e.g., a guilty plea depending on the circumstance) may be fatal in the immigration context. Furthermore, statutes vary from state to state and it is not always clear whether a given state statute will be found to align with the federal provisions in the CSA. For these reasons, it is crucial to work with an experienced immigration attorney to understand the process from both the criminal and immigration angles.
If a noncitizen is convicted of a drug offense, he or she should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to determine the potential immigration ramifications of the conviction and determine whether there exists a path forward in the immigration context.
To learn about how the Second, Third, Fifth, and Ninth Circuits have interpreted various state controlled substances statutes and applied them in light of drug trafficking related inadmissibility and deportability, please read our full article [see article].
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.