Immigration Effect of a Drug Crime Conviction

For a foreign national in the United States, any drug conviction and even drug use has potentially serious immigration and other legal consequences. In fact, if you have a felony drug conviction on record, you are considered removable or 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 (you have a green card), you are likely to lose that status and be removed (deported) to your home country (or in rare situations, a third country). 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. And if you are undocumented (not authorized to be in the United States), a crime on record will almost guarantee you'll be detained and then deported.

In any such a case, if you are in the United States, the Department of Homeland Security (DHS) is likely to arrest you and to 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 the possibilities of obtaining immigration 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," provided your conviction did not involve an element of drug trafficking (sale), which is considered to be an aggravated felony. Just like its name implies obtaining a "cancellation" grant would mean you could keep your U.S. permanent 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 (NTA), 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 held green card-holder status, for at least five years to be eligible for cancellation of removal. You also must have been in the United States 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 2018
• you were granted your green card in 2023
• you committed the crime in 2024, and
• a Notice to Appear was issued to you in 2026.

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 United States 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, a grant of relief is completely discretionary; the very opposite of a legal right. You will be at the mercy of the immigration judge. If the judge decides that you do not deserve to stay in the United States, the judge will issue an order of removal, and you will have trouble finding any grounds upon which to appeal the decision.

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

You would have the right to appeal an immigration judge (IJ)’s decision on either of the following grounds:

• the judge abused their 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 (B.I.A.) 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. This is not a likely outcome, as the B.I.A. tends to defer to the IJ's authority.

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.