quick reference chart and annotations for determining immigration ...

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