Uribe & Uribe APLC

CONSEQUENCES OF DRUG CONVICTIONS

Drug offenses can cause extremely serious immigration consequences, including making a person deportable, inadmissible, convicted of an aggravated felony, and barred from eligibility for relief. 

As a result it is very important to seek competent counsel to avoid adverse immigration consequences if one is facing allegations stemming from a drug related offense. The attorneys at Uribe & Uribe APLC are experienced and skilled in defending immigrant defendants in drug cases. 

If one has a drug related conviction on his or her record it can often lead to peril or adverse consequences in immigration court.  

immigration consequences for a conviction for drug trafficking

A conviction of drug trafficking triggers the worst possible immigration consequences – even if the trafficking offense itself is relatively minor, like sale of a small amount of marijuana. Adverse consequences can attach even without a drug trafficking conviction. Just an arrest alone can cause the immigration consequences. This includes, with some important exceptions, any conviction under H&S C §§ 11351, 11352, 11358-60, 11378, 11379, and several other offenses.

1) A conviction for drug trafficking, or for some non-trafficking offenses that are analogous to federal drug offenses, is an “aggravated felony” if it involved a federally-defined substance. (But a conviction for “offering” to do this is not an aggravated felony, in the Ninth Circuit only.) 

2) A conviction for selling or giving away any controlled substance is a crime involving moral turpitude. 

3) With only a narrow exception, a conviction for selling any controlled substance is a “particularly serious crime,” dangerous for asylum-seekers, asylees, and refugees."

As a result of the legal complexities associated with a drug related conviction or activity and immigration consequences it is essential to associate with competent counsel to avoid deportation, denial of naturalization, or bar from admission to the United States as a result of the conviction. If you or a loved one is facing such allegations contact the attorneys at Uribe & Uribe APLC. 

Drug Trafficking Aggravated Felony

What is a drug trafficking aggravated felony?

An aggravated felony is a term of art in immigration law, which is unrelated to concepts in California criminal law. It is defined at 8 USC § 1101(a)(43). A misdemeanor and potentially even an infraction (see discussion of H&S C § 11358, below) can be an aggravated felony. When we are talking about controlled substances, we are most concerned about one definition of aggravated felony, the so-called “drug trafficking” aggravated felony.

An offense qualifies as a drug trafficking aggravated felony if it has as an element a controlled substance that is listed on federal drug schedules, and it meets either of two tests:

 1) Its elements meet the general definition of drug trafficking, such as sale, or possession or transport for sale. For example, conviction for possession for sale of $10 of marijuana is an aggravated felony; or

2) Its elements are analogous to those of certain federal drug felonies. Some of the federal felonies do not involve trafficking, such as cultivation of marijuana, distribution without remuneration, or obtaining a prescription by fraud.

How is an aggravated felony conviction harmful?

For immigration purposes, a drug trafficking aggravated felony conviction is perhaps the single most damaging type of conviction after murder. It is a ground of deportability as well as a bar to almost all forms of relief. An aggravated felony conviction is worse than a “mere” deportable or inadmissible conviction. An aggravated felony is an absolute bar to relief such as asylum and cancellation for lawful permanent residents, while a drug conviction that is not an aggravated felony is serious, but is not a bar to those particular kinds of relief.

Conviction for Trafficking Is a Crime Involving Moral Turpitude

What is a crime involving moral turpitude?

Trafficking, but not simple possession, of a controlled substance is a crime involving moral turpitude. Assume this includes sale, offer to sell, possession for sale, transport for sale, and the like. Defenders must assume that distribution without remuneration also is a crime involvong moral turpitude although immigration counsel may argue against this. Assume that the offense need not involve a federally defined controlled substance. Transportation for one’s own use is not a crime involving moral turpitude. This was included in §§ 11352 and 11379 before January 1, 2014, and in § 11360 before January 1, 2016. That means that convictions for conduct from before those dates are divisible as crimes involving moral turpitude. Advocates can explore arguments that giving away or even selling small amounts of marijuana is not a crime involving moral turpitude, since it is lawful in so many states.

How is a crime involving moral turpitude harmful?

Because a drug trafficking offense has such serious consequences, the fact that it also is a CIMT often has no impact. But in some cases, it does matter. For example, we can avoid many consequences of a drug trafficking conviction by using a non-federally defined substance defense. But the conviction still may cause serious problems as a crime involving moral turpitude.