Foreign nationals need to beware of entering into a plea of guilty or no contest in criminal court now more than ever. This is especially true for controlled substance offenses. There are several reasons why foreign nationals need to be more careful about entering a guilty plea for a controlled substance violation.
First, there used to be a lot of immigration waivers that forgave people for committing certain controlled substance violations crimes. These waivers were used to prevent deportation, but Congress got rid of them in 1996. Now, there is only one waiver available for a controlled substance violation.
The second reason why a foreign national needs to be more careful about entering a guilty plea in criminal court is that President Obama’s goal is to deport as many criminal convicts as possible. State agencies talk to the enforcement division of Immigration (known as ICE) more frequently to ensure that people with criminal convictions are placed on a “hold" so they can be transferred over to ICE instead of being released.
The one waiver that is still available is for possession of 30 grams or less of marijuana and can only be used once. A foreign national who is being prosecuted for possession of marijuana needs to be aware of the waiver and how it works. Depending on the facts of the case, an offer to plea guilty to an offense of possession of drug paraphernalia (usually, a pipe) might be a great criminal plea bargain. However, a conviction like this has a horrible impact on the immigration status of a foreign national defendant. A conviction for possession of paraphernalia is a violation of a law relating to a controlled substance. The waiver does not apply to this offense.
A foreign national who enters a guilty plea for possession of paraphernalia will most likely be deported. Yes, that is right. Foreign nationals, including legal permanent residents, can be deported over a pipe. This probably seems unfair since the criminal penalty and consequence of a crime like this is treated as a “slap on the wrist" in criminal court. This is just one example of a good criminal deal that has a really bad consequence.
One of the best things a foreign national can do while they are involved in a criminal case is consult with an immigration attorney. The immigration attorney can assist the criminal attorney in planning case strategy. Depending on the circumstances, the best options in this type of situation are usually to qualify for a pretrial intervention or a deferred prosecution program, plea out to possession of 30 grams or less and get the waiver. Another option, of course, is for the foreign national to go to trial.