quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
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Immigrant Legal Resource Center, Florence Immigrant <strong>and</strong> Refugee Rights Project,<br />
Maricopa County Public Defender August 2012<br />
(9th Cir. 2004). However, the Ninth Circuit is likely to reconsider this holding, because it was based on<br />
the court’s general rule not to consider the effect of recidivist sentence enhancements, a rule that was<br />
overturned in United States v. Rodriguez, 128 S.Ct. 1783 (2008); see also comments in Lopez v.<br />
Gonzales, 127 S. Ct. 625, n. 3 (2006). Note also that a single conviction of possession of flunitrazepam is<br />
an aggravated felony, even if there is no prior drug conviction; see discussion of ARS § 13-3407/3408.<br />
Whenever possible, criminal defense counsel should plead to “use” or leave the record vague<br />
between possession <strong>and</strong> use. Criminal defense counsel should reduce a possession conviction to a<br />
misdemeanor wherever possible. This is because a felony may be treated as an aggravated felony in<br />
<strong>immigration</strong> proceedings outside the Ninth Circuit, <strong>and</strong> in federal criminal prosecutions <strong>for</strong> illegal reentry.<br />
“Use,” <strong>and</strong> a first misdemeanor possession, will not be so treated. See Note: Controlled<br />
Substances, Part V.<br />
Controlled Substance Conviction Causing Deportability <strong>and</strong> Inadmissibility. Yes in general,<br />
but see exception below. The person will be inadmissible <strong>and</strong> will not be allowed to seek legal status in<br />
the United States. If the client is a lawful permanent resident, the conviction will render him deportable<br />
but eligible <strong>for</strong> a waiver of removal (<strong>immigration</strong> pardon) if the offense is not an aggravated felony <strong>and</strong> if<br />
he has had his lawful permanent residence <strong>for</strong> at least five years <strong>and</strong> has been living in the United States<br />
<strong>for</strong> at least seven years after any legal admission.<br />
Exception <strong>for</strong> possession of 30 grams or less or <strong>for</strong> being under the influence of marijuana,<br />
hashish, THC-carboxylic acid. Generally a conviction <strong>for</strong> simple possession of a controlled substance is<br />
a deportable <strong>and</strong> inadmissible offense. The only statutory exceptions are that a single offense <strong>for</strong> 30<br />
grams or less of marijuana will not cause deportability (8 USC § 1227(a)(2)(B)(i)), may be amenable to a<br />
discretionary waiver of inadmissibility (8 USC § 1182(h)), <strong>and</strong> is not a bar to good moral character (8<br />
USC 1101(f)(3)). Where the possession exception applies, make sure it is reflected in the record of<br />
conviction <strong>and</strong> if the quantity was more than 30 grams make sure the record of conviction is sanitized of<br />
the quantity.<br />
The INS extended these exceptions to apply to hashish. INS General Counsel Legal Opinion 96-<br />
3 (April 23, 1996). The Ninth Circuit extended the exception to cover being under the influence. Flores-<br />
Arellano v INS, 5 F.3d 360 (9th Cir. 1993). The Ninth Circuit also extended this to a conviction of<br />
attempt to be under the influence of tetrahydrocannabinol (THC)-carboxylic acid in violation of Nevada<br />
law. Medina v Ashcroft, 393 F.3d 1063 (9th Cir. 2005).<br />
Eliminating the conviction. A first conviction <strong>for</strong> simple drug possession or possession of<br />
marijuana that occurred prior to July 14, 2011 can be eliminated by state “rehabilitative relief” such as<br />
ARS § 13-907 as long as the defendant did not violate probation prior to the offense being set aside.<br />
Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009).<br />
b. Use<br />
Crime Involving Moral Turpitude: No, see possession.<br />
Aggravated felony. No. There is no analogous federal offense, so even a conviction of use<br />
where a prior drug conviction is admitted is not an aggravated felony.<br />
Deportable <strong>and</strong> Inadmissible Drug Conviction. Yes, with an exception <strong>for</strong> a first offense<br />
involving certain drugs. The Ninth Circuit has held that a single conviction <strong>for</strong> being under the influence<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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