Convictions for illicit trafficking in controlled substance as defined in 21 USC 802, including drug trafficking crime as defined in 18 USC 924(c) subjects foreign nationals to deportation or removal from the United States.
Contact us to determine whether your offense is, in fact, a controlled-substance offense under the applicable law. While a drug conviction for distribution of a controlled substance generally results in removal, a charge for possession of a controlled substance may not carry such consequences. If you are facing drug related charges and you are a foreign national, contact an experienced immigration attorney to assist you during your plea negotiations to avoid negative immigration consequences of your plea.
An alien convicted of drug related offenses or involved in narcotics crimes, whether through trafficking or use, may be removed if he has a drug-related conviction, or is a controlled-substance trafficker, aggravated felon, drug abuser or addict. Removal for a controlled-substance offense is not based upon any distinction between misdemeanor and felonious offenses, or the imposition of any minimum sentence of incarceration. Title 18 Section 942(c)(2) defines a drug-trafficking offense as any felony punishable under the Controlled Substance Act (21 USC 801 et seq.), the Controlled Substance Import and Export Act (21 USC 951 et seq.) or the Maritime Drug Law Enforcement Act (45 USC 1902 et seq.)
The Board of Immigration Appeals has established a general approach in determining what constitutes a drug trafficking crime in the case Matter of Barret, 20 I&N Dec. 171 (BIA 1990) and in the Matter of Davis, 20 I&N Dec. 536 (BIA 1992). Under the Davis/Barret approach there are two routes to consider:
- whether the conviction involved “illicit trafficking in any controlled substance” OR
- whether the conviction is defined as a “drug trafficking crime (as defined in 924(c) of Title 18).
Under Davis/Barret approach a conviction for illicit trafficking in a controlled substance occurs if:
a. the offense is a felony under the law of the convicting state whether state or federal; and
b. the offense contains a trafficking element such that it involves the unlawful trading or dealing of a controlled substance.
Next, a state drug conviction could be an aggravated felony if it is analogous to an offense punishable under one of the three federal acts specified in 18 USC 924(c)(2) and is a felony under federal law. Under this prong some courts have held that it is not necessary that a conviction have a trafficking component.
State Law Felony
A state drug related conviction may be an aggravated felony where it is a misdemeanor under state law, but a felony under federal law. For example, in the Matter of Aruna, 24 I&N Dec. 452(BIA 2008) the Board of Immigration Appeals concluded that a conspiracy to distribute a marijuana in violation of Maryland law, although a misdemeanor, is an aggravated felony under categorical approach because its elements correspond to the elements of the federal felony of conspiracy to distribute an indeterminate quantity of marijuana under 21 USC 841(a)(1) and (b)(1)(D).
Federal Law Felony
Whether a federal offense is a felony is controlled by 18 USC 3559, which defines a felony as an offense for which the term of imprisonment exceeds one year. Further, state misdemeanors may be considered to be drug trafficking aggravated felonies if they prescribe conduct that is punishable as a felony under federal law.
Recently the Supreme Court addressed the question of when recidivist possession, would be considered an aggravated felony, barring relief from removal. The Supreme Court decided in Carachuri-Rosendo v. Holder, 560 U.S. ___ (2010), that a second or subsequent simple possession offense is not “recidivist possession” – which would be considered an aggravated felony under federal law, barring cancellation of removal – where the state conviction was not based upon finding of a prior conviction. The Supreme Court also held that if there are ambiguities in “criminal statutes referenced in immigration laws,” they should be construed in the non-citizen’s favor.