Immigration Effect of a Drug Crime Conviction

A conviction of a drug related crime carries serious consequences for an immigrant in the United States. In some cases, it is a deportable offense.

Any drug conviction and even drug use has potentially serious consequences for a person's immigration status. If you have a felony drug conviction on record, you are considered deportable under U.S. immigration law. (See Section 237 of the Immigration and Nationality Act (I.N.A.).)

If you have already become a lawful permanent resident (have a green card), you are likely to lose that status and be removed (deported) from the United States. If you are not currently a lawful permanent resident, but are an intending immigrant, your visa or other request for immigration benefits will be denied. In either case, if you are in the U.S., the Department of Homeland Security (DHS) is likely initiate removal proceedings and possibly deport you.

Difficulties in Obtaining a Waiver of Inadmissibility for Drug Crimes

Typically, someone who faces deportation or refusal of an immigrant visa for a crime has the possibility of applying for a waiver of inadmissibility. A waiver forgives the crime (for immigration purposes) and allows the person to remain in, gain entry to, or return to the United States.

However, the U.S. government has greatly restricted any relief for drug crimes. With the exception of a single drug offense involving possession of 30 grams or less of marijuana (for one's own, personal use), drug crimes cannot be waived.

Another, less commonly applicable exception is for a person whose conviction was the result of a guilty and no-contest plea before April 1, 1997 as the result of a plea agreement.

Cancellation of Removal for Certain Permanent Residents

If you already have a green card, you might be eligible for a form of relief called cancellation of removal, providing your conviction did not involve an element of drug trafficking (sale), which is an aggravated felony. Just like its name implies, this would mean that you could keep your residence status and not be deported.

To qualify for cancellation of removal, you must establish at a hearing in immigration court that:

  • you have been a permanent resident for at least five years
  • prior to service of the Notice to Appear, or prior to committing the offense, you had at least seven years of continuous residence in the United States after having been lawfully admitted in any status, and
  • you have not been convicted of an aggravated felony.

As the above reflects, you must have had immigrant status, that is your green card=holder status, for at least five years to be eligible for cancellation of removal. You also must have been in the U.S. for at least seven years (in any lawful status) before you committed the offense that resulted your receiving a notice to appear before an immigration judge. For example, consider these hypothetical events:

  • you entered the United States in 2015
  • you were granted your green card in 2020
  • you committed the crime in 2021, and
  • a Notice to Appear was issued to you in 2023.

Under those circumstances, you are not eligible for cancellation of removal. Despite the fact that you had been a resident for five years, and the Notice to appear was not issued until eight years later, you had only been in the U.S. for six years before you committed the crime. There are absolutely no exceptions to these time requirements.

In addition to meeting the criteria for cancellation of removal, the relief is completely discretionary. You will be at the mercy of the immigration judge. A judge who decides that you do not deserve to stay in the U.S. will issue an order of removal.

Can I Appeal the Immigration Judge's Order of Removal?

You would have the right to appeal an immigration judge's decision on either of the following grounds:

  • the judge abused his or her discretion by denying the relief, or
  • the judge erred in applying the law to your situation.

When a decision is discretionary, the Board of Immigration appeals will not second-guess it unless you can show that the judge's discretionary power was somehow abused, such as because the judge failed to consider all of the facts before rendering the decision. However, if the judge somehow erred in applying the law in finding you did not qualify for the relief, but you know you did qualify, you need only show that a mistake was made in the application of the law. In either situation, if you convince the Board of Immigration Appeals that you are correct, you will get another chance to make your case in immigration court.

Getting Legal Help

If you are not a U.S. citizen, overcoming any drug crime to retain immigrant status is no easy task. Do not attempt to evaluate your eligibility based solely on the information above. Even if you meet the basic criteria, you must still convince an immigration judge that allowing you to stay a resident is not contrary to the welfare of the U.S. public and that you deserve to retain your status. You are strongly urged to consult an experienced immigration attorney to discuss your situation. Doing so will optimize the chance of success.

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