Immigration Consequences

The U.S. government defines controlled substances as drugs and other substances or immediate precursors listed under federal drug schedules pursuant to the United States Controlled Substance Act (21 U.S.C. § 801, et. seq.: https://www.law.cornell.edu/uscode/text/21/801). These substances include cocaine, heroin, and methamphetamine. They also include specific prescribed medications such as sleeping pills, Vicodin, and opioids.

See also: https://www.dea.gov/drug-information/csa

Keep in mind the fact that state laws, including California’s, could criminalize drugs not listed under the federal drug schedules. However, you would have a viable defense to deportation if the drug in question was not listed therein.

See https://www.ilrc.org/sites/default/files/resources/chart-note_08-controlled_substances.pdf

In other words, for anyone to face immigration consequences for a drug crime, the drug in question must be identified in the federal drug schedules (again, pursuant to the U.S. Controlled Substances Act).

If you are an immigrant already living in the U.S., you could face possible (non-mandatory) deportation under the following circumstances:

• If the judge establishes that you are an addict or abuser of drugs;
• After receiving a conviction for any crime related to a controlled drug except a single offense for possessing 30 grams of marijuana or less for personal use.

See https://www.immigrantdefenseproject.org/marijuana/

See also https://www.hrw.org/report/2015/06/16/price-too-high/us-families-torn-apart-deportations-drug-offenses

If you are an immigrant living in California, you could face mandatory removal or deportation under the following circumstances:

• The drug charge against you is an “aggravated felony” offense;

See https://www.ilrc.org/sites/default/files/resources/immigration_and_sentence_11.2020.pdf

• You have a conviction record for more than one offense carrying, in total, more than five years of a jail sentence;
• The violation you face charges for is characterized as a crime of “moral turpitude”, which:
  • You committed within 1 to 5 years of your arrival in the U.S.;
  • It carries a minimal possible prison term of one year, regardless of what punishment you received after conviction. 

See https://www.ilrc.org/sites/default/files/resources/n.7-crimes_involving_moral_turpitude.pdf

Crimes involving moral turpitude entail “wicked, deviant behavior constituting an immoral, unethical, or unjust departure from ordinary social standards such that it would shock a community.”

See https://www.law.cornell.edu/wex/moral_turpitude

Drug Crimes as Crimes of Moral Turpitude

Drug-related crimes are typically regarded as crimes of moral turpitude as they contravene and undermine societal norms. However, crimes of moral turpitude are not defined under the Immigration and Nationality Act: https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act.

Common drug crimes in California that are considered crimes of moral turpitude are:

• Possession for Sale of a Controlled Substance (California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html);
• Possession for Sale of Methamphetamine (California Health and Safety Code section 11378: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11378.html)
• Sale or Transportation of a Controlled Substance (California Health and Safety Code section 11352: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11352.html);
• Sale or Transportation of Methamphetamine (California Penal Code section 11379: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11379/
• Manufacturing a Controlled Substance (California Health and Safety Code section 11379.6: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11379-6.html)

See https://defendermanuals.sog.unc.edu/sites/default/files/pdf/3.5%20Crime-Related%20Grounds%20of%20Inadmissibility.pdf (criminal grounds of immigration removal).

Drug Crimes as Aggravated Felonies

A drug crime becomes an aggravated felony if it includes a potential additional sentence of one year or more incarceration under the federal Controlled Substances Act: https://www.dea.gov/drug-information/csa

You could face charges for an aggravated felony as an immigrant even if you are convicted under state law, regardless of whether the crime is a felony or misdemeanor. The most common consequences of a conviction for an aggravated drug-related felony are:

• Mandatory deportation after a conviction for the aggravated felony; and
• Ineligibility for relief that would otherwise be available following a non-aggravated felony sentence, including asylum relief, cancellation of deportation, and hardship waivers or permission to reapply for admission after deportation.

See https://www.americanimmigrationcouncil.org/research/aggravated-felonies-overview

How Using Drugs Can Impact Your Immigration Status

Drugs and alcohol can significantly impact your immigration status in three ways:

• Through abuse or addiction;
• Through criminal convictions; and
• Through criminal association.

See https://www.sji.gov/wp/wp-content/uploads/Immigrants-in-Drug-Court-4-1-13.pdf (drug court ramifications for immigrants).

The use of drugs or alcohol can hinder you from obtaining a visa or green card and render you removable. Nevertheless, each person’s case is unique. In some situations, you are not considered deportable or inadmissible even after a drug-related conviction. In other circumstances, pleading guilty to a drug-related offense could preserve your immigration options.

See https://defendermanuals.sog.unc.edu/sites/default/files/pdf/Chapter%206%20Immigration%202017_0.pdf (“Minimizing Adverse Immigration Consequences”).

Using drugs can affect your immigration situation in the following ways:

Being an Alcoholic or Drug Addict

You are considered deportable or inadmissible if you are a drug addict, abuser, or alcoholic.

See https://www.uscis.gov/policy-manual/volume-8-part-b-chapter-8 (“Health-Related Grounds of Inadmissibility – Drug Abuse or Drug Addiction”).

If you admit in your immigration application to drinking alcohol or doing drugs, you cannot obtain a green card or even enter the U.S. under any other visa.

If U.S. Citizenship and Immigration Services (USCIS): https://www.uscis.gov or other consular officers suspect you are using drugs, are addicted to drugs, or are a harmful alcoholic, they will refer you to a doctor for a medical review. If the doctor’s report concludes that you are addicted to drugs or are a harmful alcoholic, USCIS will deny your visa or green card application.

See https://www.uscis.gov/policy-manual/volume-8-part-b-chapter-7 (“Physical or Mental Disorder with Associated Harmful Behavior”).

Remember that alcoholism in and of itself is usually not a sufficient ground for inadmissibility in the U.S. But it tends to result in harmful behavior, which is a valid ground.

Even if you are already living in the country, you can be deported for the same reasons above. The law provides that any immigrant who becomes a drug addict or starts abusing drugs after admission into the United States is deportable.

CE has several ways of obtaining evidence about your drug addiction, including your social media posts and admission to drug treatment programs.

See Mental Health Diversion (California Penal Code section 1001.36: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1001.36.&lawCode=PEN)

Drug Diversion (California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1000)

Proposition 36 Drug Treatment Diversion Program: https://lao.ca.gov/ballot/2000/36_11_2000.html

California “Drug Court”: https://www.courts.ca.gov/5979.htm

Judicial Diversion (Court Initiated Diversion) (California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html)

Informal Diversion (California Penal Code section 1001.94: https://law.justia.com/codes/california/2016/code-pen/part-2/title-6/chapter-2.96/section-1001.94; California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html).

However, ICE cannot lawfully deport a person who joins a treatment program for drug abuse or addiction and does not have a conviction for a drug-related crime. However, if you are found or plead guilty to a drug offense, you will likely face deportation after a conviction for a drug treatment that you successfully complete. Thus, immigrants should obviously discuss possible consequences with their attorneys before accepting plea agreements involving drug treatments.

See https://www.hrw.org/report/2015/06/16/price-too-high/us-families-torn-apart-deportations-drug-offenses (“Detention and Deportation of Immigrants in the U.S. for Minor Drug Offenses”).

After a Criminal Conviction

As an immigrant, you are generally considered inadmissible if you are convicted of or admit to committing most drug-related offenses. However, an “inadmissibility waiver” could be available if your case involves thirty (30) grams of marijuana or less.

See https://www.ilrc.org/sites/default/files/resources/immigrants_marijuana_may_2021_final.pdf (“Immigrants and Marijuana”).

Keep in mind that even though marijuana is legal in California, it remains a Schedule 1 controlled substance under federal regulations.

See simple Possession of Marijuana (California Health and Safety Code section 11357: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11357.html).

Note that you do not require a drug conviction to be classified as inadmissible. Admitting to simply possessing illegal drugs in and of itself can be a sufficient ground for inadmissibility.

See Possession of a Controlled Substance (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html)

Possession of Methamphetamine (California Health and Safety Code section 11377: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html)

See also CALCRIM Number 2304 (“Simple Possession of Controlled Substance — Health & Saf. Code §§ 11350, 11377”: https://www.justia.com/criminal/docs/calcrim/2300/2304/).

Also, anything involving drug trafficking and handling drug money will almost certainly result in adverse immigration consequences.

See CALCRIM Number 2300 (“Sale, Transportation for Sale, etc., of Controlled Substance — Health & Saf. Code §§ 11352, 11379”: https://www.justia.com/criminal/docs/calcrim/2300/2300/)

CALCRIM Number 2301 (“Offering to Sell, Transport for Sale, etc., a Controlled Substance — Health & Saf. Code §§ 11352, 11379”: https://www.justia.com/criminal/docs/calcrim/2300/2301/).

Finally, California has various drug diversion programs that qualify as “sentences” under U.S. immigration laws. Do not assume that an expunged or even a dismissed drug charge will not result in negative consequences for you as an immigrant.

Through Drug Associations

Some immigration cases do not require you to confess to a drug offense or have a drug conviction to be inadmissible.

If immigration officials believe that you (as an immigrant) have been illegally trafficking any controlled substance or are a known aider, assister, abettor, colluder, or co-conspirator involved in drug trafficking, you will be labeled inadmissible.

See https://www.ice.gov/investigations/narcotics (“Narcotics Smuggling – ICE”).

Additionally, if you are a child or spouse of any person declared inadmissible due to their involvement in drug trafficking and have obtained money or other financial benefits from them knowingly, you, too, will also be labeled inadmissible.

To deny your application, the consular office only needs to have a reason to think that you are linked to drug activities or profits.

See https://www.usa.gov/federal-agencies/bureau-of-consular-affairs

In this case, the immigration office can use all evidence, including even information from a withdrawn or dismissed criminal case. The law also seeks to punish family members that turn a blind eye to drug-related activities.

How Possessing Drugs Can Impact Your Immigration Status

Your removal for merely possessing an illicit substance is entirely within the immigration judge’s discretion. In any event, simple possession of controlled drugs is not categorized as an aggravated felony unless the drug is Rohypnol/flunitrazepam, a.k.a. the so-called “date rape drug” or “roofie”.

See https://www.dea.gov/factsheets/rohypnol (“Rohypnol — What is it?”).

Rohypnol can be legally used in the United States with a valid prescription to lessen depression associated with using stimulants such as methamphetamine and cocaine. And, of course, it is frequently used illegally to facilitate sexual assault or rape when placed in a victim’s drink. Among other debilitating, psychoactive effects, the drug causes powerful amnesia, so victims have limited or no memory of the assault.

Drug possession, except for possession of Rohypnol, is typically charged as a misdemeanor offense, punishable by a maximum of one year in jail. Since the crime is not punishable by more than one year, it is not listed as an aggravated felony for immigration purposes.

But see, e.g.: Possession of a Controlled Substance While Armed with a Firearm (California Health and Safety Code section 11370.1: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-1.html)

Possession of a Controlled Substance with Intent to Commit Sexual Assault (California Health and Safety Code section 11350.5: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=10.&title=&part=&chapter=6.&article=1 & California Health and Safety Code section 11377.5): https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377-5.html

Therefore, a single conviction for simply possessing a controlled drug will typically not result in deportation or inadmissibility. Additionally, you are not eligible for deportation if you are acquitted of possessing controlled substances.

But you would likely be classified as inadmissible even without a conviction if U.S. immigration officials believe the following:

• You have been trafficking any unlawful drug or chemical;
• You have knowingly assisted another person in the illegal trafficking of drugs; or
• You are a child or spouse of a trafficker who has obtained financial assistance within the last five years from your parent’s or partner’s illegal drug activity, and you knew that the money was generated as a result thereof.

See https://www.immigrantdefenseproject.org/wp-content/uploads/Imm-Consq-checklist-2017-v3.pdf (“Immigration Consequences of Crimes Summary Checklist”).

Drug diversion programs are available for first-time drug offenders who (merely) possess controlled substances. The program enables them to avoid prison sentences to undergo treatment and rehabilitation.

See https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1000.

However, you could face deportation even after agreeing to drug diversion. But in other circumstances, you could avoid the harsh immigration consequences if you successfully participate in a diversion program.

In cases where drug programs are available before trial, you are not required to plead guilty or no contest to qualify for diversion. In this case, you will avoid punitive consequences after going through the program. But in cases where drug diversion is available, if you enter a guilty plea, the court dismisses your drug charge once you successfully go through treatment. Dismissed charges could nevertheless result in deportation.

See https://caimmigrant.org/what-we-do/policy/arrest-to-deportation-pipeline/ (“Arrest to Deportation Pipeline”).

But since 2017, defendants participating in drug diversion programs can avoid adverse immigration consequences if they petition the immigration court to vacate their conviction. But this is not possible today with Proposition 36 diversion.

Here are circumstances under which a drug conviction in California will not attract immigration consequences:

• If the sentence happened between 1997 and mid-2011; or
• If you completed a drug diversion program without a violation.

Again, you should consult with both an experienced criminal lawyer and an immigration attorney if you are an immigrant before accepting a diversion program that requires you to enter a guilty plea.

Fighting Adverse Immigration Consequence after a Drug Conviction

Notwithstanding the foregoing, you can avoid these consequences if you face drug-related charges in California. Some of the strategies you can employ include:

• Convincing the Los Angeles County District Attorney’s Office (DA’s Office) (https://da.lacounty.gov) or the Los Angeles City Attorney’s Office (CA’s Office) (https://www.lacityattorney.org) to dismiss your charges;
• Having some or all evidence excluded from trial through a Motion to Suppress Evidence (California Penal Code section 1538.5: https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html);
• Convincing the jury to dismiss your charges through a Motion to Dismiss (California Penal Code section 995: https://codes.findlaw.com/ca/penal-code/pen-sect-995.html);
• Obtaining an acquittal or even a hung jury at trial;
• Obtaining post-conviction relief;
• Successfully appealing the drug conviction;
• Fighting your removal from the U.S.; and
• Appealing the removal order. 

The Los Angeles Defense Attorney Law Firm (LADALF)

For more than 17 years (as of the date of this writing in August 2022), LADALF’s lead counsel Ninaz Saffari has worked closely with a few trusted immigration attorneys when her client was not a United States citizen. Beginning almost immediately after she began working as a Deputy Public Defender for L.A. County, Ninaz saw firsthand how a shocking number of private criminal defense attorneys pled their clients out to misdemeanors or felonies that resulted in their deportation.