Conviction of a drug crime can have serious consequences for everyone, but a conviction might cause additional complications for individuals who are not citizens. Anyone charged with a drug crime who is not a United States citizen should consult with an immigration attorney as well as a criminal defense attorney to avoid the most serious penalties associated with their case.
Depending on your immigration status, your criminal history, and the specific crime with which you are charged, the immigration consequences of a conviction for a federal or state drug crime can include:
- Mandatory detention
- Loss of eligibility for lawful residency
- Loss of asylum or eligibility for asylum
- Loss of eligibility for citizenship (temporary or permanent)
- Loss of eligibility for entry into the United States
In addition, anyone deported for a drug crime who enters the United States without proper documentation is committing a crime that carries the possibility of a lengthy federal sentence.
Deportation is a potential (and sometimes mandatory) consequence when a defendant who is not a citizen is convicted of certain crimes involving controlled substances under federal or state law. The controlled substance must be one that is listed in the federal controlled substances schedules.
The offenses that make a defendant deportable include distribution, possession with intent to distribute, and manufacturing, an attempt to commit any of those offenses, conspiracy to distribute or manufacture, and simple possession.
There are two exceptions to deportability for simple possession:
- A first offense of simple possession of 30 grams or less of marijuana, and
- A first offense of possession of paraphernalia that is related to a first offense possession of 30 grams or less of marijuana.
If conviction of a drug crime makes you deportable, an immigration attorney may be able to help you avoid deportation. In some instances, however, deportation is mandatory.
Deportation is mandatory when a defendant who is not a United States citizen is convicted of an aggravated felony. An aggravated felony conviction can also make a noncitizen permanently ineligible for naturalization or asylum. According to immigration law, “illicit trafficking in controlled substances” is an aggravated felony. Courts generally regard drug crimes as aggravated felonies if they:
- involve a controlled substance as defined by federal law, and
- contain a trafficking element, or
- would be punished as a felony under federal drug laws.
A “controlled substance” is a drug that is regulated under the federal Controlled Substances Act. Some states regulate drugs that are not included in the federalcontrolled substances schedules. A state conviction involving a drug that is not listed in the controlled substances schedules is not an aggravated felony as that term is used in immigration law.
“Trafficking” generally means the sale or barter of controlled substances. It is a narrower term than distribution. Drugs can be distributed without being trafficked if, for instance, they are given away for free. Any state or federal crime involving trafficking in a controlled will generally be regarded as an aggravated felony.
Other drug crimes are regarded as aggravated felonies even if they do not involve trafficking, provided that the crimes involve controlled substances and would be punished as felonies if the conviction occurred under federal law.
Since simple possession of a controlled substance (other than flunitrazepam) is not a felony under federal law, a state felony conviction of simple possession is not regarded as an aggravated felony. However, a repeat conviction of simple possession can be a federal felony, so convictions for repeat offenses under either state or federal law might be classified as aggravated felonies.
Determining whether a repeat offense of simple possession is an aggravated felony can be tricky. Timing is important. If the first conviction did not become “final” before second offense was committed, the second offense probably cannot be counted as a repeat offense.
In addition, there are sometimes issues surrounding proof of the defendant’s status as a repeat offender that prevent a second possession conviction from being regarded as an aggravated felony. Because these are complicated issues, it is important to get the advice of an immigration attorney, as well as a criminal defense, attorney, if you are not a citizen and are facing a prosecution for any drug crime.
How a Lubbock Drug Lawyer Can Help
The best way to avoid immigration consequences of a drug conviction is to avoid being convicted. Representation by a skilled and experienced criminal defense attorney gives you your best chance of avoiding conviction. To learn about strategies that can be used in your case to fight against a conviction, call Hamilton, Hull & Byrd today.