quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
under this ground, even if the person has strong equities such as being married to a U.S. citizen
or a strong asylum case. A permanent resident who becomes inadmissible faces less severe
penalties: the person cannot travel outside the United States, and will have to delay applying to
become a U.S. citizen for some years, but will not lose the green card based solely on being
inadmissible (as opposed to deportable, which does cause loss of the green card).
To avoid being inadmissible under this ground, a noncitizen needs to plead to some nondrug-related
offense. If that is not possible, accessory after the fact is better than a drug offense,
but depending on the facts the government may argue that this provides “reason to believe” the
person aided a drug trafficker in doing the trafficking. The person also should know that when
applying for immigration status she will be questioned by authorities about whether she has been
a participant in drug trafficking. She can remain silent but this may be used as a factor to deny
the application. See further discussion at § 3.10, supra.
Conviction of straight possession, under the influence, possession of paraphernalia etc.
does not necessarily give the government “reason to believe” trafficking (unless it involved a
suspiciously large amount).
2. Inadmissible or Deportable for Being a Drug Addict or Abuser
A noncitizen is inadmissible if he or she currently is a drug addict or abuser, and is
deportable if he or she has been an addict or abuser at any time after admission into the U.S. 125
Criminal defenders should consider this ground where a defendant might have to admit,
or be subject to a finding, about addiction or abuse in order to participate in a “drug court” or
therapeutic placement like CRC. This might alert immigration authorities and provide a basis
for the finding. Otherwise, in practice immigrants rarely are charged under this ground.
Strategically, in some cases, it would be better not to go to drug court even if this will
avoid a drug conviction, if the conviction would be a first offense that can be eliminated for
immigration purposes under Lujan-Armendariz. This may be an individual case decision that
requires input from an immigration expert. Note that like other immigration drug provisions,
drug abuse or addiction refers only to federally defined controlled substances. One possible
drug court option is for a person to admit he or she is in danger of becoming addicted to a
substance that appears on the California schedule but not the federal. The ground is not
triggered by an acceptance of drug counseling where there is no admission or finding of
addiction or abuse, for example pursuant to Proposition 36 laws.
3. Formally Admitting Commission of a Controlled Substance Offense that was Not
Charged in Criminal Proceedings
125 INA § 212(a)(1)(A)(iii), 8 USC § 1182(a)(1)(A)(iii) (inadmissibility ground); INA § 237(a)(2)(B)(ii), 8 USC §
1227(a)(2)(B)(ii) (deportation ground).
N-82 Immigrant Legal Resource Center