If you are an immigrant accused of a drug crime in California, you may be subject to immigration consequences based on your criminal record and the specific offense you committed. An immigrant is anybody with a green card, a lawful permanent resident, someone on a work visa, an asylee, a refugee, or someone on a student visa. One of the consequences you can face in this case is deportation.
That said, if you are an immigrant staying in California and are accused of a drug offense, you will need to understand the circumstances that could impact your immigration status. Narcotic offenses are severe criminal matters. Additionally, immigration statutes are strict on drug charges, and there are several stages of a case that require the simultaneous involvement of immigration and criminal courts.
Consulting a skilled criminal defense lawyer to understand how drug crimes can impact your immigration status is the best step if you have been accused of a drug crime in California.
Crimes That Are Basis for Removal
The federal immigration statute lists several grounds for removal, and courts consider particular criminal conduct among them. The most severe class of offenses is known as CIMT (crimes involving moral turpitude).
Unfortunately, there is no one standard list of crimes that fall within this category. It is often at the judge's discretion to decide on that, contingent on the facts surrounding the case and the type of crime. Drug offenses can, at times, be classified as crimes involving moral turpitude, but no two cases are the same.
When you perpetrate any crime that involves moral turpitude, you are more likely to face deportation and other immigration repercussions. A CIMT is generally defined as any depraved act that shocks the public conscience and goes contrary to the rules of morality.
Drugs That Can Make You Deported
21 U.S.C. 802 describes a regulated substance as a drug, immediate precursor, or any other substance listed under the five drug schedules provided by the U.S. Controlled Substances Act. Examples of these substances are illegal narcotics like meth, cocaine, and heroin and prescription medications like sleeping pills, oxycodone, codeine, and hydrocodone.
Note that certain substances might be unlawful under state statute but be excluded from the federal drug schedules. For an offense to qualify as a deportable crime, it must entail a substance listed under any of the federal narcotics schedules. The prosecution bears the burden of demonstrating that the drug involved falls under 21 U.S.C. 802.
Immigration Repercussions from Narcotics Convictions
Based on the facts surrounding your arrest, convictions for drug offenses can have severe immigration consequences. Nearly any drug offense you perpetrate in California can impact your immigration status and, based on how severe it is, may lead to mandatory or optional deportation.
Optional Deportation
If you are staying in the United States on a visa, green card, or any other immigration status, you could be subject to optional removal for a narcotics conviction and lose the privilege of ever residing here again.
California drug crimes are among the most prevalent reasons for deportation proceedings. Every year, thousands of individuals residing in California face deportation for a regulated substance conviction. Should a judge find you criminally liable for any of these narcotic-related crimes under California law, you will be subject to potential immigration proceedings that may lead to deportation:
- Drug possession for personal use
- Drug sale
- Drug manufacturing
- Transporting or trafficking controlled substance
You may also be subject to optional deportation if you are a drug addict or user.
Mandatory Deportation
Convictions for certain drug offenses can subject you to mandatory removal, according to federal statute. If your California narcotics or drug conviction meets any of these factors, you may be subject to mandatory removal:
- You have been found criminally liable for two or several offenses that carried prison terms totaling five or more years
- The drug crime you committed is categorized as an aggravated felony
- The drug crime is classified as a CIMT; you perpetrated it within five years of your coming to the United States, and it carries a potential incarceration period of 12 months or longer (irrespective of the term you received).
As mentioned above, the United States (INA) Immigration and Nationality Act does not clearly describe moral turpitude. However, generally, except for drug possession for personal use, offenses that involve regulated substances are virtually always deemed CIMTs. Examples of drug crimes that are classified as CIMTs under California law include HSC 11352, drug sale, and HSC 11351, drug possession intending to sell.
A drug crime falls under the aggravated felony category if a judge would penalize it as a felony (carrying a potential term of over 12 months) under federal controlled substances statutes. This is the case even if an immigrant is found criminally liable under state laws, irrespective of whether the state laws define the offense as a felony or a misdemeanor. The primary repercussions of a drug-related offense falling under the aggravated felony category are:
- A conviction for an aggravated felony will subject an immigrant to mandatory deportation.
- Certain kinds of relief will not be available after a conviction for an aggravated felony, including asylum relief, cancellation of deportation under 8 USC 122b(a)(3), and hardship waivers or permission to reapply for admissibility to the United States after removal (form I-212). Other Immigration Consequences of a Drug Crime Conviction
If you face potential deportation, whether mandatory or optional, a criminal lawyer is the better-placed person to determine your legal options going forward. The ideal move is to challenge the charges against you in court to dodge immigration implications. Otherwise, you will need an immigration lawyer to represent you in federal immigration court. Hiring an experienced lawyer can help you avoid deportation proceedings. Ideally, the lawyer will attempt to have the judge lower the charges against you or drop the case entirely so you can avoid immigration implications.
Other Immigration Consequences of a Drug Conviction
Apart from deportation, there are other legal immigration consequences that an immigration judge can impose after your drug offense conviction based on the particular crime and your immigration status. Apart from optional or mandatory deportation, you may be subject to inadmissibility to the U.S. If you are not a United States citizen and are found guilty of a drug crime.
If you are an immigrant who is not admissible to the United States, you will not be subject to deportation if you are in the United States legally. However, you cannot do the following:
- Apply for a green card (legal permanent resident status) or an adjustment of status from unlawful to lawful. Your green card may be revoked if you have one.
- Become a United States citizen (naturalization)
- Legally reenter the country after leaving
- You may also lose asylum
Even a conviction for a minor drug offense could have severe consequences if you wish to adjust your immigration status or apply for permanent residency. Also, conviction of any narcotic offenses makes immigrants inadmissible to the United States if they apply to reenter the country later.
Note that a drug offense conviction will also subject you to inadmissibility to the United States, irrespective of your immigration status or the period you have lived here.
Marijuana Exception
For the longest time, pot was among the primary reasons for removal under California law. Recently, marijuana statutes have been relaxed more, particularly in places such as California.
If the drug charges against you involve possessing 30 or fewer grams of pot, and the judge determines that you did not engage in selling, you do not have to be concerned about possible removal. This is among the few marijuana exceptions. Any other drug-related crime will subject you to the standard penalties.
Deportation for Drug Use
Generally, you can be deported from the United States if you are a drug abuser or addict. However, practically, the United States does not remove legally present immigrants who seek drug abuse treatment and are not to be convicted of an offense. But if the court finds you criminally liable for, or if you enter a no contest or guilty plea to a controlled substance violation, the judge may order your removal even if they sentence you to drug treatment and you complete your treatment course.
Consequently, if you are an immigrant, we advise you to discuss with your lawyer the immigration consequences that may be imposed against you before agreeing to enter a plea that involves drug treatment.
Deportation for Drug Possession for Own Use
You can also be removed for possessing controlled substances for your personal use. A criminal conviction for illegally possessing drugs (except for small quantities of pot) renders an immigrant’s removal. In these cases, deportation will be within the immigration judge's discretion.
Fortunately, simple drug possession does not fall under the aggravated felony category unless the controlled substance involved is Rohypnol (flunitrazepam). Under federal statute, possessing drugs for own use (except for Rohypnol) carries an incarceration period that does not exceed 12 months.
Since a judge cannot impose a penalty exceeding 12 months, possession of drugs (except for Rohypnol) does not fall under the aggravated felony category, regardless of how state laws classify it. Therefore, one conviction for simply possessing any narcotics except for Rohypnol will not subject you to mandatory deportation if you are an immigrant in the United States legally.
Deportation for Drug Possession If Not Convicted
You cannot be deported from the United States for drug possession if you are not eventually convicted. However, you can be considered inadmissible in the absence of a criminal conviction if the United States Attorney General or consular officer reasonably believes you:
- Are or have been an illegal trafficker of any illicit drug chemical
- Have knowingly aided somebody else in illegal trafficking
- Are the child or spouse of a controlled substance trafficker and have within the last five years acquired any financial benefits or any other benefits from your spouse or parent's criminal activity and were aware or should reasonably have been aware that the benefits were the outcome of the unlawful activity.
Drug Paraphernalia Possession as Grounds for Deportation
You may be removed from the U.S. if convicted of possessing drug paraphernalia, but this can happen if the prosecution can tie your conviction to a particular federally controlled substance. Practically, a drug paraphernalia possession conviction is, on its own, unlikely to subject you to immigration consequences.
Deportation and Expungement
When you expunge your drug conviction, it will clear your criminal record of the negative repercussions associated with that particular conviction. Unfortunately, under immigration statutes, expungement does not provide any relief from removal. Even if the judge ordered that your drug conviction be removed from your record, immigration courts do not allow a person to use expungement as a type of relief.
How You Can Avoid Deportation
Under particular circumstances, you may successfully avoid removal or other immigration repercussions by enrolling in a drug diversion program. In certain states, narcotics treatment is an option with pretrial diversion. Under these programs, accused persons are not obligated to plead guilty and thus will not be subject to immigration repercussions if they complete the diversion program.
For other states, like California, a defendant must plead guilty first to qualify for a narcotics diversion program. If the accused person completes the program, the judge will dismiss the charges against them.
A charge dismissal alone will not invalidate the drug conviction or guilty verdict for immigration law purposes. However, an accused person who completes drug diversion under PC 1000 can evade immigration repercussions by filing a petition in court to vacate the conviction.
This relief was effected in 2017 but is yet to be an option under Proposition 36 diversion. However, a California narcotics conviction will not subject you to immigration consequences if it happened between 1997 and July 14th, 2011, and you completed any drug diversion program without violating probation.
If you are an immigrant defendant, you should consult with an attorney experienced in state immigration and criminal laws before agreeing to a drug diversion program that necessitates you to plead guilty.
Will a Pardoned, Expunged, or Vacated Drug Conviction Lead to Deportation?
Having your narcotics conviction expunged or vacated will relieve you of almost all the consequences a conviction carries. Unluckily, you will generally not be relieved from immigration repercussions unless the court expunged or vacated the conviction because you completed a drug diversion program without violating probation before July 2011 or because of a severe procedural mistake that violated your constitutional rights.
On the contrary, a conditional and full presidential or governor's pardon will relieve you from immigration consequences. However, obtaining a presidential or governor’s pardon is time-consuming and challenging. Thus, it is best to avert the immigration repercussions of a drug conviction.
Defending Against Deportation After a Drug Charge Conviction
There are various ways in which you can avoid the adverse immigration consequences of a narcotics conviction. These include, but are not limited to, the following:
- Prevailing in the case during a bench or jury trial
- Having the judge drop the charges through a dismissal motion under PC 995, for example,
- Having evidence suppressed by filing a motion to suppress evidence per PC 1538.5
- Persuading the prosecution to drop the charges
- Winning an appeal of your conviction
- Seeking post-conviction relief
- Contesting the deportation order before an immigration court
- Agreeing to a plea deal involving charges with fewer immigration repercussions, like criminal trespass, a crime that will subject you to optional instead of mandatory deportation (like simple drug possession instead of possession for sale), a crime that still permits a hardship waiver or any other similar relief.
- Appealing a deportation order to the Board of Immigration Appeals
Usually, the most favorable outcome in your situation is having your case dismissed without a plea deal that might involve immigration repercussions. Otherwise, the charge could be modified to include a non-deportable offense.
Non-deportable offenses depend on the facts surrounding the case. Criminal trespass (PC 602), disturbing the peace (PC 415), and possessing less than 28.5g of pot (HSC 11357b) are always appropriate alternative charges to add to a complaint for purposes of a plea deal that prevents a conviction for a deportable offense.
If you are an immigrant facing removal, the best way to resolve a case is to suppress the unlawfully acquired evidence, discredit a key witness on the prosecution's side, conduct chemical testing of the drug seized, or file any of the motions that could lead to a case dismissal or obtain substantial negotiating power to resolve the case to shield you from deportation. Most importantly, you want to hire a competent lawyer to defend you.
Find an Experienced Drug Crimes Lawyer Near Me
If you are charged with a drug offense in California and are worried about whether the charge will affect your immigration status, we at California Immigration Attorney can help. Our highly experienced criminal defense lawyers will evaluate your case, contest your drug charges, and assist in protecting your immigration status, ensuring you obtain the best possible outcome. Call us today at 424-789-8809 for a free consultation.