1 Padilla in Practice Series Immigration Consequences of Drug Offenses: Overview and Strategies January 31, 2012 National Association of Criminal Defense Lawyers and the Defending Immigrants Partnership
2 Presenters Dan Kesselbrenner, National Immigration Project of National Lawyers Guild Benita Jain, Immigrant Defense Project
8 Deportability Controlled substance offense? Drug trafficking aggravated felony?
9 Controlled Substance Offense INA 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i) Conviction Relating to Controlled substance (21 USC 802) Exception: one 30g marijuana possession
10 Controlled Substance Schedule I, II, III, IV, or V of federal Controlled Substances Act
11 Conviction for Federally Covered Drug Controlled Substance Offense Deportable!
12 Possession Only Controlled Substance Offense Deportable!
13 Possession With Intent to Sell Controlled Substance Offense Deportable!
14 Sale or Distribution Controlled Substance Offense Deportable!
15 Marijuana Possession Conviction Simple 30 grams or less Personal use One time Exception to Controlled Substance Ground Not Deportable! Safer Haven
16 Paraphernalia Conviction Controlled Substance Offense Exception: Deportable! One time + relating to 30 grams marijuana
17 Conviction for drug that is not covered under federal law Not Controlled Substance Offense Not Deportable! Safer Haven
18 Exercise The following acts are hereby prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijuana shall be considered a small amount of marijuana. Does a conviction under this statute make your LPR client deportable?
19 Review: Record of Conviction Includes Elements of offense (statute & case law) Criminal charge (information, complaint, etc. if incorporated into plea i.e. pled as charged) Written plea agreement Transcript of plea hearing Transcript of judgment Sentence Jury instructions
20 Review: Record of Conviction Does NOT Include: Police reports, probation or pre-sentence reports Statements by non-citizen outside of judgment and sentence transcript (to police for example) Information from co-defendant s case WARNING: Stipulating to facts in a document not otherwise part of the ROC incorporates them by reference into the ROC (i.e., stipulation to police reports
21 Drug Trafficking Aggravated Felony INA 101(a)(43(B) Any illicit trafficking In a controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime (as defined in section 924(c) of title 18, United States Code)
22 Drug Trafficking Crime 18 U.S.C. 924(c): felony punishable under the Controlled Substances Act the Controlled Substances Import and Export Act or the Maritime Drug Law Enforcement Act.
23 Drug Trafficking AF: Felony LopezRule felony under federal law State felony drug conviction not always drug AF!
24 Drug Trafficking AF: The Key Question Is the state offense punishable as a misdemeanor or felony under federal law? first-time simple possession = federal misdemeanor Exception: flunitrazepam recidivist possession = sometimes federal felony almost all manufacturing, distribution, PWID = federal felony
25 Federal felony drug conviction Aggravated Felony Deportable Probably Mandatory!
26 State drug conviction for offense that federal law punishes as a felony Aggravated Felony Deportable Probably Mandatory!
27 Simple possession first offense Not Aggravated Felony (unless flunitrazepam) (but still Controlled Substance Offense, Deportable)
28 Simple possession second or subsequent No finding of prior drug conviction/recidivism Not Aggravated Felony Prior at issue in subsequent case, finding of recidivism finality of prior? notice? Maybe Aggravated Felony process requirements?
29 Drug Sale Aggravated Felony Deportable Probably Mandatory!
30 Offer to sell Possible Aggravated Felony safer haven Does ROC establish actual sale? Burden? (But probably still Controlled Substance Offense = Deportable!)
31 Gratuitous distribution of small amount of marijuana Possible Aggravated Felony safer haven What is small amount? Burden? (But still Controlled Substance Offense = Deportable!)
32 Review: Possible Drug AF safer Havens Type of drug is not in the record Sale, manufacturing or distribution not in record Possession case and prior not at issue Offer to sell only Gratuitous marijuana distribution (small amount) but remember to analyze whether it s still a controlled substance offense!
33 Exercise The following acts are prohibited: Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board. LPR client deportable under controlled substance ground? LPR client deportable/ineligible for relief under AF ground?
34 Exercise Same LPR client Charge: Possession with intent to deliver Statute doesn t cover small amount of marijuana Strategies?
35 Drug Offense Deportability Strategies Avoid controlled substance offense deportability: Avoid any drug-related conviction. Specify a substance that is not covered under 21 U.S.C If impossible, then keep record clear of substance involved (if your state punishes non-csa drugs. Compare). If cannot avoid drug conviction in marijuana case and client has no prior drug convictions, take a possession for personal use of 30 grams or less of marijuana (preferably on record, else leave record ambiguous).
36 Deportability Strategies, cont d If cannot avoid CSO, avoid drug aggravated felony (to possibly preserve relief 1. Plead/limit record to simple possession (except flunitrazepam) instead of distribution/intent to sell. 2. If client has prior final drug conviction, avoid recidivist finding especially if state has notice/process requirements similar to federal (opportunity to challenge fact, finality, validity of prior).
37 Deportability Strategies, cont d 3. If cannot plead/limit record to simple possession, plead/limit only to offer to sell (risky, but leaves opening) 4. If cannot avoid distribution in marijuana case, plead/limit to gratuitous distribution of small amount of marijuana. (risky, but leaves opening)
38 Undocumented Clients Inadmissibility
39 Inadmissibility Controlled substance offense? Reason to believe drug trafficker?
40 Controlled Substance Offense INA 212(a)(2)(A)(i)(II); 8 USC 1182(a)(2)(A)(i)(II) Conviction or admission Relating to Controlled substance (21 USC 802) No 30g marijuana exception! (But may be give fighting chance for some with relatives in US)
41 Controlled Substance Trafficker INA 212(a)(2)(C)(i); 8 USC 1182(a)(2)(C)(i) Government knows or has reason to believe Illicit trafficker Controlled substance/listed chemical in 21 USC 802 OR a knowing aider, abettor, assister, conspirator, colluder
42 Exercise The following acts are hereby prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijuana shall be considered a small amount of marijuana. Undocumented client: Inadmissible?
43 Drug Offense Inadmissibility Strategies Best practice is to avoid any drug-related conviction. Period. Specify a substance that is not covered under 21 U.S.C If client with citizen/lpr parent/spouse/child is facing a marijuana charge and you absolutely cannot avoid conviction, it may help to limit conviction to simple possession of 30 grams or less of marijuana check with immigration practitioner!
44 Drug Offenses General Strategies Negotiate diversion without a guilty plea (to avoid conviction ) Offer alternate plea to free-standing accessory offense In some cases, plea to accompanying non-drug charge may be better
45 Exercise Undocumented client Charged with drug possession and gun possession Strategy?
46 Exercise LPR client Charged with drug possession and gun possession Strategy?
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