Immigration Consequences of Controlled Substance Offenses
by Elizabeth R. Blandon

The immigration consequences of controlled substance offenses can be various and violent: ineligibility to enter the U.S., ineligibility to become a legal permanent resident, inability to become a citizen, deportation and mandatory detention. Therefore, for each arrest, a foreign national will want to work closely with both an immigration attorney and a criminal defense attorney.

A foreign national, even a legal permanent resident who has spent most of her life in the United States, is considered “applying for admission” when she arrives in the United States from abroad. Likewise a foreigner who lives in the U.S. and is applying for adjustment of status is also considered applying for admission. At the moment of admission, it does NOT matter whether the foreigner was CONVICTED of a controlled substance offense. If the foreigner admits she committed the acts, Immigration will deny residency and permission to enter the U.S.

When Immigration is trying to deport a foreigner, a conviction is required. The immigration and criminal defense professionals will try to fashion the plea agreement so that the foreigner is not considered “convicted” under the immigration laws. If the foreigner was already sentenced and convicted, the criminal defense attorney may work on post-conviction relief, such as trying to vacate the sentence.

A foreigner is not subject to deportation for possessing less than 30 grams of marijuana. However, this exception does not apply when a foreigner is “applying for admission.” This attorney has seen legal permanent residents travel abroad for a short trip to the Bahamas only to return and find themselves legally inadmissible. Although the foreigner is allowed to enter the country, legally she has not been admitted. At the Immigration Court proceedings, the judge will declare that the foreigner must leave the U.S. because of that conviction for a single act of marijuana possession under 30 grams.

If the foreigner is deemed inadmissible or excludable, she will apply for a waiver so that the benefit can be attained. Different waivers are available depending on whether the foreigner is a non-immigrant (in the U.S. temporarily) or a legal permanent resident, as well as when the conviction occurred.