Any drug conviction and even drug use has serious consequences on a person’s immigration status. If you have a felony drug conviction, you are deportable. If you have already become a lawful permanent resident (have a green card), that means you can lose it and be removed from the United States -- though there is still a chance that you can retain your immigrant status. If you are not currently a lawful permanent resident, but are an intending immigrant, your visa will be denied. In either case, if you are in the U.S., the Department of Homeland Security will initiate removal proceedings (deport you).
Typically, when a person faces deportation or refusal of an immigrant visa for a crime, he or she may have the opportunity to apply for a waiver of inadmissibility. A waiver forgives the crime (for immigration purposes) and allows the person to remain in the country, gain entry, or return to the U.S.
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.
If you already have a green card, you may be eligible for cancellation of removal, providing your conviction did not involve an element of drug trafficking (sale), which is an aggravated felony. To qualify for cancellation of removal, you must establish at a hearing in immigration court that:
1. You have been a permanent resident for at least five (5) years
2. Prior to service of the Notice to Appear, or prior to committing the offense, you have at least seven years of continuous residence in the United States after having been lawfully admitted in any status, and
3. You have not been convicted of an aggravated felony.
As the above reflects, you must have had immigrant status, that is your green card, 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 resulting in the issuance of a notice to appear before an immigration judge. For example, consider these hypothetical events:
1. you entered the United States in 2010
2. you were granted your green card in 2015
3. you committed the crime in 2016, and
4. a Notice to Appear was issued to you in 2018.
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 6 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. If the judge decides that you do not deserve to stay in the U.S., he or she will issue an order of removal.
You would have the right to appeal an immigration judge’s decision on the following grounds:
1. The judge abused his or her discretion by denying the relief, or
2. The judge erred in applying the law to your situation.
When a decision is discretionary, the Board of Immigration appeals will not second-guess the decision unless you can show that the judge’s discretionary power was somehow abused, such as the judge having 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.
If you are not a U.S. citizen, overcoming any drug crime to retain immigrant status is no easy task, and you should 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.