Written by attorney Samuel Patrick Ouya Maina

Will I be Deported because of my Drug Conviction?

Did you know that even if you have a Green Card you may still be deported for any number of criminal offenses? One of the most common grounds for removal/deportation is drug related convictions. But, in some circumstances, you may be able to remain in the US with your Green Card even if you have such a conviction.

For immigration cases that arise within the jurisdiction of the Ninth Circuit Court of Appeals, an alien whose offense would have qualified for treatment under the Federal First Offender Act, but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. What does this mean? Well in plain English this means that if you had a conviction that was later expunged (erased) under state law, you might be able to prevent immigration from deporting you because of that conviction. This is important because in many instances getting your "record cleared" does not have any bearing on immigration cases – Immigration and Customs Enforcement could still try to deport you.

A common scenario would be like this: you are in criminal court on a drug charge, you accept a plea bargain or are otherwise found guilty, but the criminal consequences do not seem that bad – maybe a fine, some classes, and you continue with life, especially because you are told you can clean your record in a few years. The surprise that awaits many people is that they can be placed in removal proceedings because of the conviction.

BUT, you may be able to stay in the US if you qualify for treatment under the Federal First Offender Act. So how do you qualify for this relief? Well, you first want to make sure your conviction happened before 14 July, 2011. The law treats convictions that occurred after that date very differently than convictions before that date. Next, you have to show the following:

You were found guilty of an offense described in section 404 of the Controlled Substances Act ("CSA"), 21 U.S.C. § 844; (an attorney can help you determine this)

You have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances (in other words, you have only one conviction involving controlled substances); and

You have not previously been accorded first offender treatment under any law (you never were granted this relief from removal/deportation before).

If you have a drug conviction and are worried that it may cause you problems in the future - or if you are already in removal proceedings - consult with competent and experienced immigration counsel to see what your options may be. You may find that you worried needlessly!

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