When Can a Drug Conviction Make Me Deportable or Inadmissible?
a) Controlled Substance Violations.
A conviction for the violation of the laws of any state,the United States or a foreign country “relating to" a controlled substance as defined in section 102 of the Controlled Substances Act,21 U.S.C. § 802 is both a deportable and inadmissible offense. See INA § 237(a)(2)(B); 8 U.S.C. § 1227(a)(2)(B);INA § 212(a)(2)(A)(i)(II),8 U.S.C. § 1182(a)(2)(A)(I)(II).
i) Includes paraphernalia offenses. Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000).
ii) Includes convictions for being under the influence of,use of,possession of,and distribution of a controlled substance.
iii) Attempt and conspiracy to commit a controlled substance offense is a deportable offense. INA § 237(a)(2)(B); 8 U.S.C. §1227(a)(2)(B).
iv) There is a circuit split on whether solicitation to possess may be okay since the plain language of the statute enumerates only attempt and conspiracy. Coronado-Durazo v. ICE , 123 F.3d 1322 (9th Cir. 1997), but see Peters v. Ashcroft, 383 F3d 302 (5th Cir. 2004)
v) The drug involved must be included on the federal controlled substances list. Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. 2005) (Khat is not a controlled substance as defined in the controlled substances act).
vi) Exception to the Ground of Deportability for a single offense of simple possession of 30 grams or less of marijuana for one’s own personal use.
vii) Ground of inadmissibility does not require a conviction. A plea to simple possession of 30 grams or less still triggers inadmissibility grounds,but a waiver may be available.
(1) Waiver based on an offense more than 15 years prior to the date of application for a visa,admission or adjustment of status,and evidence of rehabilitation,or
(2) Based on extreme hardship to a spouse,parent or son or daughter of aU.S.Citizen or Lawful Permanent Resident.