IMMIGRATION CONSEQUENCES OF DRUG ABUSE AND OFFENSES

 By Roman P. Mosqueda, Esq.

            Any alien who is determined to be a drug abuser or addict under U.S. Department of Health and Human Services regulations is ineligible for a visa and admission into the United States.

            Inadmissibility of a drug abuser or addict under Section 212(a)(1)(A)(iv) of the Immigration and Nationality Act does not have a waiver available to such an alien under this section of the Act.

            Also inadmissible to the United States is any alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of any law or regulation relating to a controlled substance, under Section 212(a)(2)(A)(i)(II) of the Act.

            A waiver for inadmissibility for such violation of law relating to a controlled substance is available, but limited to a single offense of simple possession of 30 grams or less of marijuana and under certain circumstances, such as:

            (1)     in the case of an immigrant who had committed the offense more than 15 years before application for admission;

            (2)            his/her admission is not contrary to national welfare, safety or security; and

            (3)            he/she has been rehabilitated,

or denial of admission would result in extreme hardship to the U.S. citizen or lawful permanent resident spouse, parent or son or daughter of such immigrant alien, under Section 212(h) of the Act.

Controlled Substance Trafficker:

            Also inadmissible to the United States is any alien who the consular or immigration office knows or has reason to believe is or has been an illicit trafficker (seller) in any controlled substance or listed chemical, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, under Section 212(a)(2)(C)(i) of the Act.

            No actual conviction for drug trafficking is necessary because of the phrase “knows or has reason to believe” in this section of the Act.  But trafficking or sale of drugs should involve monetary or other consideration.

            And on or about December 3, 1999, Congress has also made inadmissible to the United States the spouse, son or daughter of an alien inadmissible for drug trafficking, if that spouse, son or daughter has obtained within the previous 5 years 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, under Section 212(a)(2)(C)(ii) of the Act.

            Section 212(h) of the Act does not provide any waiver for inadmissibility of a drug trafficker.

            Worse, illicit trafficking in a controlled substance as defined in Section 102 of the Controlled Substance Act (21 USC § 802), including a drug trafficking crime as defined by U.S. statute (18 USC § 924(c)), is classified as an “aggravated felony”, under Section 101(a)(43)(B) of the Act, for which there is no relief from removal (no cancellation of removal). 

            The only relief for an alien, whether a non-immigrant in current or overstaying status, an illegal alien who entered without inspection, or lawful permanent resident, who is involved in drug trafficking, is withholding of removal or relief under the United Nations Convention Against Torture (CAT).

Relief of Immigrant Alien Convicted of Possession Use of Controlled Substance:

            A lawful permanent resident who has not been convicted of any aggravated felony, but who has been convicted of possession or use of a controlled substance (not an aggravated felony), may keep his/her lawful permanent resident status (“green card”), if he/she is eligible for the relief of cancellation of removal of certain permanent residents, under Section 240A(a) of the Act.

            Under this section of the Act, removal of such lawful permanent resident may be cancelled, if the alien:

            1.   has been lawfully admitted for permanent residence for not less than 5years;

            2.   has resided in the United States continuously for seven (7) years after having been admitted in any status; and

            3.   has not been convicted of any aggravated felony.           

            Indeed, cancellation of removal for certain permanent residents is available for all grounds of removal, except for aggravated felonies and security related grounds (Sections 212(a)(3) and 237(a)(4)) of the Act, such as espionage, overthrow of the government, terrorist activities, foreign policy consequences, membership in a totalitarian or Communist Party, participation in Nazi persecutions or genocide, and association with terrorist organization).  See Ira J. Kurzban, Immigration Law Sourcebook, page 690.

            And since possession or use of a controlled substance, short of trafficking therein, is not an aggravated felony, nor security and related ground for removal, a lawful permanent resident, admitted for at least 5 years and a resident of the United States for at least 7 years after admission in any status, may keep his/her lawful permanent residence (“green card”) in removal proceedings.

            Just say no to drugs!