If you are a noncitizen of the U.S. and you have been convicted of a crime – nearly any crime -- there’s a serious possibility that you could be deported (removed) from the United States. This is true whether or not you are here in lawful status. You might hold a valid visa, or even be a lawful permanent resident (green card holder), but you can still be deported for a crime. (If you’re not in lawful status in the U.S., you can of course be deported on that basis alone.) This article will look at whether conviction for a crime involving drugs or controlled substances, in particular, could make you deportable.
Regardless of what you learn in this article, you will want to get an experienced immigration attorney's help with researching the effect of your criminal conviction on your immigration status. The overlay of criminal and immigration law is, without a doubt, one of the most complicated areas of law that exists.
Ideally, you should have consulted with an immigration attorney soon after you were arrested, to get advice on how to negotiate with the prosecutor so that your conviction (if it was unavoidable) is one that has the least possible effect on your immigration status. Whether or not that happened, we're going to assume that the conviction is now a done deal, and help you understand the basics of the analysis that has to happen next.
U.S. immigration law contains a long list of grounds of deportability – that is, reasons that you can be removed from the United States. (See “Grounds of Deportability: When Legal U.S. Residents Can Be Removed.”)
Crimes occupy a large part of that list of grounds. But the crimes are, in many cases, described in very general terms. So the question always becomes, does the exact crime that an immigrant was convicted of – which conviction most likely took place in state court, under that state’s law – match the federal law description of a ground of deportability?
This analysis typically involves asking (at a minimum) the following three questions:
- Was this a crime of moral turpitude?
- Was this an aggravated felony?
- Was this a crime that’s separately listed on the grounds of deportability?
To further complicate matters, the legal analysis may be affected by which federal court circuit you are in. If your immigration case is being heard in California, for instance, which is in the Ninth Circuit, the impact of certain crimes may be interpreted differently than if you were in New York, which is in the Second Circuit.
Can a Drug Crime Be a Crime of Moral Turpitude?
Regardless of what your crime was named, if it is viewed as reprehensible, and was committed with some degree of intent, deliberateness, willfulness or recklessness, it may be considered a crime of moral turpitude, or CIMT. You can be deportable for either:
- one crime involving moral turpitude committed within five years of admission to the U.S. if you could have received a prison sentence of one year or more. (I.N.A. § 237(a)(2)(A)(i)) or
- two or more crimes involving moral turpitude that did not arise out of “a single scheme of criminal misconduct.” (I.N.A. § 237(a)(2)(A)(i).)
Convictions for drug distribution or trafficking have been found to be CIMTs. Other drug crimes, such as possession or use, are typically not considered crimes involving moral turpitude – but they don’t need to in this context, because drug crimes are separately listed in the statute as grounds of deportability, as described below. Also, if separate charges were added onto a drug crime, these might constitute CIMTs.
In any case, remember that you will need an attorney to take a close look at the exact language of the law that you were convicted of violating, and potentially the facts recorded in your case, to give it a full analysis.
Can a Drug Crime Be an Aggravated Felony?
A single conviction for an aggravated felony is enough to make a noncitizen deportable, regardless of the length of the possible sentence. Before you protest, “I didn’t commit a felony at all, much less an aggravated felony,” realize that it doesn’t matter what your crime was called. The immigration law contains its own definition of aggravated felony, and you will need to have a lawyer perform a complete analysis to see whether you committed one. See Nolo’s article, ”What’s an Aggravated Felony According to U.S. Immigration Law?” for more on this topic.
Drug trafficking has, in some cases, been found to be an aggravated felony for immigration law purposes. Again, however, you will want a lawyer to look into the exact crime of which you were convicted.
Are Drug Crimes Separately Listed on the Grounds of Deportability?
The immigration laws do, in fact, address drug crimes. A noncitizen is deportable for having, at any time after being admitted to the U.S., been convicted of violating (or conspiring to or attempting to violate) any law or regulation relating to controlled substances (drugs). It doesn’t matter whether the conviction was for violating a state, federal, or foreign law or regulation – any of these will make the noncitizen deportable from the United States.
There is an exception for conviction of a single marijuana offense, if it involved possession of 30 grams or less for one's own, personal use. Such a conviction will not make you deportable.
What’s more, any noncitizen who, at any time after admission to the U.S. has been a drug abuser or addict is deportable. This part of the statute doesn’t require an actual conviction; your admission of drug use, or evidence on a medical report, could be used as the basis for removal proceedings.