Immigration Consequences for Criminal Drug or Controlled Substance Violations

Aliens, even those living in the United States as a lawful permanent resident, is considered to be applying for admission whenever returning from abroad to the United States.  An alien that is applying for adjustment of status is also considered applying for admission.  When applying for for admission, even the mere acknowledgment of criminal activity can deny the alien residency and permission to enter or re enter the United States.

For deportation, the Immigration Court looks as to whether the alien was convicted, and the nature of the offense.  The criminal defense lawyer’s ability to reach a plea bargain that does not impact the alien, or which makes the alien eligible for a waiver, is often the only solution.  If the alien was convicted, the criminal defense lawyer may attempt to set aside the conviction by reaching a resolution with the Prosecution, seeking relief from judgment from the criminal sentencing Court, or appealing the conviction.  One recent avenue of relief is for the alien to challenge the conviction because he or she was not adequately informed with the immigration consequences of the plea.  For these types of situations, you should hire a law firm that has experience and expertise in both criminal defense and immigration law, such as Hilf & Hilf, PLC.

There are some exceptions to deportation – such as a petty exception for possession of less than 30 grams of marijuana.  Such matters can prove difficult in Michigan where the possession of marijuana statute does not limit the Defendant to less than 30 grams to meet the elements of the offense.  An alien applying for admission is not eligible for this exception, but may be eligible for a waiver.  It is possible for an alien returning from abroad could be ordered to leave the United States by an Immigration Judge for a single act of possession of less than 30 grams of marijuana.

If the alien is inadmissible or excludable, there may be a waiver to overcome the problem,  Different waivers may apply, depending upon when the conviction occurred, what the conviction was for, whether the alien was a green card holder or simply in the United States under a nonimmigrant visa.  Delivery of drug cases, unless reversed as described above, often are a kiss of death as it relates to an alien’s ability to remain in the United States.  The USCIS does not have sympathy for drug dealers, and do not care if no jail time was ordered or that the alien Defendant received Holmes Youthful Trainee Act (HYTA) for the offense.

If a waiver is needed, the alien must generally prove that removal from the United States will cause an extreme hardship to lawful permanent resident or citizen parent(s), spouse, or child(ren).  The USCIS will look at all facts submitted to substantiate the extreme hardship (not just a hardship – an extreme hardship).  In the waiver, documentation is needed to support the extreme hardship.  For example, the documentation may be proof that the alien is attending to his lawful permanent resident parent’s debilitating illness by taking the parent to frequent doctor’s appointments, paying all the bills, etc.  The USCIS has broad discretion to determine whether or not a hardship qualifies as an “extreme hardship”.

Whenever an alien and their family is in this position, where a waiver is necessary, an immigration lawyer should be hired by the alien.  Whenever an alien who has a prior drug conviction is seeking to leave the country, or adjust their status, an the alien should hire an experienced immigration attorney.  Sometimes a conviction that is otherwise not discovered, is brought to the attention of USCIS because of a poor decision made by the alien that otherwise could have been avoided.