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§ 1.34 1. Controlled Substances Offenses

Literally every drug-related offense could be a disaster. For more detailed discussion, see Chapter 5, infra. The only offense involving a controlled substance listed on the federal schedules that does not trigger deportation is first offense simple possession of 30 grams or less of marijuana.^FN187 However, the immigrant may still be excluded from admission to the United States, even for this tiny offense, unless s/he can jump through sufficient hoops to obtain a limited waiver under INA § 212(h).^FN188 In other words, immigration relief is not automatic, even for this minimal offense.

Drug-trafficking offenses, in particular, will constitute "aggravated felonies" and trigger particularly hostile INS responses, such as holding the client in INS custody without bond pending deportation proceedings, expedited timetables, and the like, in addition to exposing the client to a federal prison term of up to 20 years if the client re-enters the country after deportation.^FN189

For more detailed treatment of this important subject, see Chapter 5.

Plea bargaining options include:

1. Among the charges, pick a non-drug count to plead to, and get the drug charges dismissed.

2. Amend the information to charge a totally different non-drug offense to plead to, under North Carolina v. Alford, 400 U.S. 25 (1970).

3. Plead to accessory after the fact (for example, 18 U.S.C. § 3 or California Penal Code § 32) to a drug offense. This will avoid adverse immigration consequences, so long as the client avoids imposition of a sentence of one year or more. Thus, the client needs to receive a sentence of imposition of sentence suspended, and no more than 364 days as a condition of probation. Otherwise, the conviction will be considered an aggravated felony under an obstruction of justice theory.^FN190 NOTE: A conviction of misprision of a felony has been held to constitute a crime of moral turpitude.^FN191

4. Pre-plea diversion avoids a conviction entirely and causes no adverse immigration effects.

5. Acquittal avoids a conviction entirely and causes no adverse immigration effects.

6. Dismissal (or obtaining an order vacating a judgment) avoids a conviction entirely and causes no adverse immigration effects. NOTE: Expungements under state rehabilitative statutes are effective in eliminating INS consideration of drug offenses only for first-offense simple possession, possession of paraphernalia, and similar minor first offenses that are not federal felony offenses, and – so far – only in the Ninth Circuit.^FN192

7. Juvenile findings are not considered "convictions" by the INS. See

Chapter 2.

8. If the prosecution is intransigent, traditional defense techniques such as motions to disclose informants, motions to suppress evidence, and trial may be necessary even in a long-odds case because the immigration consequences are far more serious than the criminal consequences, sometimes amounting to destruction of the family or a life sentence to exile.

9. If the client "admits" the elements of committing a drug offense, even if there has been no conviction, s/he is excludable from the United States. It is therefore safer not to make any formal admissions and to attempt to sanitize the charging paper, plea, and judgment of any references to drugs if possible.^FN193

10. In addition to actual convictions, the INS considers "drug addiction" and "drug abuse" to be a basis for deportation and exclusion.^FN194 It is therefore safer not to make any formal admissions of this, and to attempt to sanitize the charging paper, plea, and judgment of any references to drugs if possible. A noncitizen is also inadmissible if an immigration officer knows or has "reason to believe" that the person is or has been an illicit trafficker in controlled substances or has aided and abetted that activity.^FN195 Drug "trafficking" is "the unlawful trading or dealing of any controlled substance"^FN196

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