Immigration and Drug Law: A Dangerous Intersection

If one had to identify two areas of jurisprudence where Constitution often doesn’t seem to apply, the first one would probably be anything related to controlled substances. And, the second? Immigration Law.

For example, children who are brought here by their parents, illegally, across the border, cannot adjust their status to that of a legal one, even if they finished school and college here, are married to U.S. citizens and have U.S. citizen children. Same goes for persons who might have committed a crime in the past, if the government believes they committed an aggravated felony – and, for the purposes of immigration law, even some misdemeanors can be considered aggravated felonies. Illegal immigrants who get detained by Immigration and Customs Enforcement are often moved across the country to various detention facilities (New York detainees are often moved to Texas, for example), which makes their defense and the proper adjudication of their cases very difficult. Many of those facilities are no better than jails; in fact, some of them are jails, rented by the federal government from the States. The procedural due process for immigration detainees gets written entirely by the federal authorities; the Courts accept that immigrants’ rights are severely limited compared to those of U.S. citizens.

Predictably, when these two areas overlap, the results are often shockingly egregious. Roughly put, pretty much every drug offense is sufficient to permanently bar getting a green card or obtaining U.S. citizenship. (I have to mention, though, that there is a narrow exception to the rule: if it’s just an offense of simple possession of 30 grams or less of marijuana, one could ask the government to make an exception and let him or her off the hook.)

Below, I try to summarize the current immigration law, as it pertains to people with drug convictions:

• Any controlled substance conviction is a ground for deportation. (That also applies to green card holders. Many people don’t realize that green card holders can, and often are, easily deported for many crimes, which, under state law, often carry no jail time whatsoever.)
• A conviction or an admitted commission of a controlled substance offense would pretty much bar a person from obtaining a green card, ever. Same goes for when the government has reason to believe an individual is a drug trafficker. In that case, a conviction isn't even necessary.
• A conviction or an admission of a controlled substance offense makes a person ineligible for citizenship for 5 years.
• Now, if it’s an aggravated felony conviction, then a person is permanently ineligible for citizenship. Since, (remember?) the list of offenses that the government considers aggravated felonies is very expansive, most drug offenses would fall under the category. An example would be any sale or an intent to sale offense or simple possession of more than 5 grams of crack. So, many people who had ever committed a drug offense in the past are permanently unable to obtain U.S. citizenship, no matter how long they had been living here.
• As I mentioned above, these people, in addition to being unable to obtain their citizenship, would also face deportation – and, if the government considers their offense to be an aggravated felony, they could also face prison time, would never be able to enter the U.S. again and would have to remain in detention for the duration of their deportation proceedings, which often takes many months.
• Furthermore, an aggravated felony would make a person ineligible for asylum; if the offense involves drug trafficking, that person would not be able to ask for relief even if there is a good chance that he or she would be killed or tortured in his home country, once deported.

So, if you are not a U.S. citizen and have been arrested for a controlled substance offense, please remember to consult an immigration lawyer in addition to the criminal defender. Our plea bargaining system often allows an easy way out by pleading to a lesser charge, something that often doesn’t carry any prison time – that tactic won’t work for those who are not U.S. citizens. I have been practicing immigration law for a while and I see many people who come to us (or call us from detention) looking for help, only to find that there is not much that can be done for them under the current legal framework. One should take great pains not to end up at the intersection of the Drug War and our clunky immigration system.