Inadmissibility Due to Controlled Substance Violations (Drug Offenses) – INA 212(a)(2)(A)(i)(II)

In this blog, we will discuss controlled substance violations, how they effect your eligibility for permanent residency in the United States, and strategies to move forward if you have a drug offense conviction. Specifically, we will cover:

Under INA section 212(a)(2)(A)(i)(II) any applicant with past convictions for drug offenses, or who admits to using drugs, is inadmissible to the United States. Whether a controlled substance is legal under state law is not relevant to its illegality under federal law. In determining what is a controlled substance, the INA refers to Section 102 of the Controlled Substances Act (21 U.S.C. 802). Common examples of controlled substances leading to inadmissibility to the United States include:

• Cannabis (marijuana)
• Cocaine
• Methamphetamine
• Opioids (without prescriptions)
• MDMA (ecstasy)
• LSD (acid)
• Psilocybin (hallucinogenic mushrooms)

To be found inadmissible for a controlled substance violation, you must have been convicted of a controlled substance violation, or you must have admitted consuming controlled substances.

It is not unusual for people to admit to consuming drugs at a visa interview, especially as it relates to marijuana. Many individuals mistakenly believe marijuana offenses are not problematic or believe that because it was legal in the place where it was consumed, that it would not be a problem for purposes of immigration. However, these admissions have led to extremely problematic outcomes for individuals. If you have any arrests, convictions or use any controlled substances, it is important to discuss this matter with your immigration attorney to determine the best strategy.

Although individuals often make admissions to consular or USCIS officers, these admissions must follow a certain procedure to be used against the person. Specifically, the Foreign Affairs Manual, the guide that consular officers use, notes that “it is often difficult to obtain a legally valid “‘admission.’” 9 FAM 302.3-2(B)(4). The manual notes certain procedures that must be followed:

1. The applicant must be given an adequate definition of the crime, including all the essential elements. The definitions must be provided to the applicant.

2. The applicant must be provided a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings be recorded verbatim.

3. The applicant must then admit all the factual elements which constituted the crime. See Matter of P--, 1 I. & N. Dec. 33 (BIA 1941).

4. The applicant’s admission of the crime must be explicit, unequivocal, and unqualified. See Howes v. Tozer, 3 F.2d 849 (1st Cir. 1925).

If you are found inadmissible for a controlled substance offense, only one waiver exists and the waiver is extremely narrow and limited. A waiver under 212(h) only applies to a single offenses for possession of 30 grams or less of marijuana. If you have more than one offense, or if the quantity is more than 30 grams, no waiver is available. This means that any other drug offense for any other type of controlled substance outside of simple marijuana possession will make you permanently inadmissible.

It is imperative to hire an immigration attorney if you have any prior history of arrests or convictions related to drug use. Even if your conviction is expunged or dismissed, it can still be problematic under immigration law. We have outlined the most important points below:

1. Expungements Not Recognized Under Immigration Law

Many people with convictions related to drug offenses have had these convictions expunged. Unfortunately, an expungement is not recognized under immigration law. This is because immigration courts do not recognize state expungements, such as California Penal Code section 1203.4, that set aside a conviction under a rehabilitative statute. Matter of Marroquin, 23 I&N Dec. 705 (AG 2005).

2. Post-Conviction Relief (PCR) Can Help

Post-conviction relief is available in some states, including California. Post-conviction relief means going back to criminal court and vacating the drug conviction. This means the conviction never occurred under immigration law. For a vacate to be recognized under immigration law, the conviction must be vacated based on a “procedural or substantive defect in the underlying criminal proceedings.” See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).

In California, a post-conviction relief motion under California Penal Code Section 1473.7 can accomplish this. An immigration attorney familiar with criminal courts is able to file and win this motion by proving any of these points:

• Prejudicial Error. This means that you were unaware of the immigration consequences of your plea, and had you known the immigration consequences, you would not have accepted the plea. Courts will look to your ties to the USA, employment and immediate family members to determine whether you would have accepted the plea, knowing it would result in immigration consequences such as inadmissibility or deportability.

• Failure to Obtain Court Advisement. Under California Penal Code Section 1016.5, the court is required to give a certain warning regarding immigration consequences. There is specific and precise wording the court must use. Failure to give this precise advisement can result in vacating your conviction. This is proven by showing the court never obtained a knowingly, intelligent and voluntary plea from you, because had you known the actual immigration consequences, you would not have accepted the plea.

• Ineffective Assistance of Counsel. In some scenarios, you may have discussed your immigration status with your criminal defense attorney, and he failed to warn you about the consequences of the plea on your immigration status, or even told you that it would not be a problem.

• Misinformation by the Court. In other scenarios, you may have been asked by the court to complete a diversion course, and upon, completion, your case would be dismissed with “no consequences.” Under California Penal Code section 1203.43, these convictions can be vacated because the advisement from the court constituted misinformation “because the disposition of the case may cause adverse consequences, including adverse immigration consequences.”

3. Argue the Conviction is not a Controlled Substance Offense

Another strategy that may be helpful is to argue that the conviction is not actually a controlled substance offense. An immigration attorney who handles complex immigration matters involving criminal convictions can develop arguments that support this.

For someone to be inadmissible to the United States based on a controlled substance offense, the controlled substance must match the exact federal definition. For example, in California, immigration attorneys have been successful in arguing that the definition of methamphetamine in California is overbroad and does not match the federal definition of methamphetamine. Convictions in California affected by this include California Health and Safety H&S section 11377(a). See Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018); United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023).

In Florida, immigration lawyers were able to argue that the Florida definition of marijuana is overbroad, since Florida includes the “mature stalks” of marijuana whereas the federal definition does not. See Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019).

4. Note that Paraphernalia is Problematic

It is also important to note that it is not only possession of drugs that can be a problem, but possessing drug paraphernalia can also lead to inadmissibility for a controlled substance offense. For example, a conviction under California H&S 11364 is problematic if the paraphernalia involved a federally-defined substance.

5. Large Amount of Drugs

If you have an arrest or conviction involving a large amount of drugs, or any evidence that may appear to involve the transportation, trafficking or sales of drugs, you have a big problem. Under immigration laws, an officer can find you inadmissible on an entirely different ground of inadmissibility known as “reason to believe.” Specifically, under INA 212(a)(2)(C)(i) an officer can permanently bar your admission to the United States if they have “reason to believe [the applicant] is or has been an illicit trafficker in any controlled substance.” Therefore, any case involving any evidence of possible trafficking or drug sales should be carefully reviewed by an immigration attorney to determine the best strategy.

Drug offenses come with severe and unforgiving penalties under immigration law. Your first step should be hiring an immigration attorney who is familiar with criminal convictions and their impact on your immigration status. Many times, individuals with prior drug convictions have no option other than to seek post-conviction relief. If you have a drug conviction and are seeking an immigration benefit, please contact our office for a consultation.