04 Mar Drug Addiction, Alcoholism, and Deportability
Foreign nationals who appear at a US entry, but are inadmissible, are typically deported back to their home country. Foreign nationals who are already in the US are also subject to deportation if they engage in prohibited activity while here. Deportation of foreign nationals is regulated by Immigration & Nationality Act section 237.
It is much easier to get deported from, than be granted admission to, the United States. While the grounds of inadmissibility cover many non-criminal matters, the majority of the grounds of deportation deal with crime. Thus, it is not surprising that the federal government focuses most of its immigration enforcement resources on criminal aliens. Commission of a crime involving moral turpitude, commission of an aggravated felony, high-speed flight from an immigration checkpoint, failure to register as a sex offender, commission of a controlled substance violation (except simple possession of 30 grams of less or marijuana), being labeled a drug abuser or drug addict, commission of a firearms offense, commission of a natural security offense, or commission of a crime of domestic violence can make someone deportable.
CRIME INVOLVING MORAL TURPITUDE
Commission of a crime involving moral turpitude (CIMT) that occurs within five years of the date of admission and carries a potential sentence of at least one year makes someone deportable. Unlike the CIMT ground of inadmissibility, admitting to a crime of moral turpitude is not enough to get someone deported. There is no standard definition of what constitutes a crime involving moral turpitude. Some courts have described a CIMT as a crime that exhibits baseness, vileness and depravity or where the there is evil intent or a corrupt mind.
Examples of CIMT include fraud, theft, shoplifting and crimes of violence (murder, rape, statutory rape). Although simple assault is generally not considered to involve moral turpitude, assault that shows criminal recklessness could be.
While not an absolute requirement, most crimes involving moral turpitude have intent as one of the essential elements. See, Rodriguez-Herrera v. INS. Statutory rape is an example of a non-intent crime that has been deemed a crime involving moral turpitude for the purposes of immigration law.[Also see definition of good moral character as it relates to naturalization]
Driving Under the Influence as a CIMT
Driving under the influence of drugs or alcohol is likely not a CIMT as this type of crime does not usually require intent. However, DUI accompanied by some aggravating factor such as a prior DUI, disregard for the safety of others, serious bodily injury/death, or a crime that does require intent (such as driving on a suspended license) could be considered a crime involving moral turpitude. See Matter of Lopez-Meza (the Board of Immigration appeals found moral turpitude where a drunk driver was knowingly driving under a suspended license).
When evaluating whether a crime involves moral turpitude, one must look not to the conduct of the actor but rather to the elements of the offense contained in the statue(s) under which the client has been convicted.
Pursuant to INA section 237(a)(2)(A)(ii), foreign nationals who have been convicted of two or more crimes involving moral turpitude at any time after admission are deportable, regardless of potential or actual confinement imposed, provided the crimes do not arise from a single scheme of criminal misconduct.
A foreign national who is convicted of an aggravated felony at any time after admission is deportable and is not entitled to most forms of relief from removal. Any aggravated felon who later returns to the United States without inspection (EWI) is subject a 20 year prison term. Aggravated felonies are deemed so either based on the length of sentence imposed for the offense (turning even some misdemeanors into aggravated felonies for immigration purposes) or by type of offense.
There are roughly 50 different offenses that could be considered aggravated felonies under the immigration code (INA 237(a)(2)(A)(iii) and INA 101(a)(43)). Typical offenses include murder, rape, kidnapping, some forms of theft, illicit trafficking in controlled substances, gun running, money laundering, crimes of violence, fraud over $10,000 and a charge of attempt or conspiracy to commit any of the above.
Any felony offense of illicit trafficking (unlawful trading or dealing) in any controlled substance is an aggravated felony. The term "drug trafficking" is extremely broad and encompasses a whole host of behavior including unlawful possession, distribution, selling, crafting, manufacturing, importing, exporting of drugs, or possession of certain drug paraphernalia. First-time simple possession of a controlled substance is typically not a drug trafficking offense, unless the substance is more than five grams of crack cocaine or the date rape drug. However, depending on the federal circuit where the alien is located, two offenses of simple possession is either automatically an aggravated felony or is an aggravated felony if there is a recidivist statute in the state. Further, distribution of a small amount of marijuana may not be an aggravated felony if no money was exchanged.
Immigration attorneys should always examine the federal first offender (FFOA) provisions and state law to see if an expungement of a first offense for simple possession is possible. See Matter of Manrique, where the Board of Immigration Appeals (BIA) applied the 9th Circuit’s reasoning in Garberding v. INA and held that an alien who has been accorded rehabilitative treatment under a state statute will not be deported if he would have been eligible for first offender treatment under federal law.
Other Crimes Involving Controlled Substances
Pursuant to INA section 237(a)(2)(B), a foreign national who is convicted of a violation (or attempt or conspiracy) of any law or regulation of any US state, the United States, or a foreign country that related to a controlled substance (other than a single offense for possession of 30 grams or less of marijuana) is deportable. As opposed to the controlled substance ground of inadmissibility, where simply admitting to committing the essential elements of a crime is enough to trigger the bar, a foreign national must be actually convicted of the crime in order to be deportable. There is no statute of limitations for controlled substance violations; a crime committed at any time prior to becoming a United States citizen makes a foreign national deportable under the Act. Under this ground of deportability, the drug must be on the federal list of controlled substances. Prohibited behavior includes being under the influence of drugs or facilitating the sale of drugs. Certain convictions for possession of drug paraphernalia also make an alien deportable under this section.
Deportation of Drug Abusers & Drug Addicts
Pursuant to INA section 237(a)(2)(B)(ii), an alien who, at any time after admission, has suffered from drug addiction or has been a drug abuser is deportable. Although the terms "drug addict" and "drug abusers" are not legal terms of art defined in the INA, the US public health service (PHS) defines drug abuse very broadly to include any non-medical use of a controlled substance (Matter of Hernandez-Ponce 19 I&N Dec 613 1988). Drug addiction includes non-medical use of a controlled substance that has resulted in physical or psychological dependence. The term "controlled substance" has been found to include alcohol. Further, having recovered from drug addiction will not help a foreign national defend against deportation proceedings. However, under INA 212(a)(1)(A)(iv), remission is defined by the Technical Instructions developed by the CDC for use by civil surgeons for immigrant medical exams and, thus, conceivably could be established by showing an absence of non-medical use of a drug for three or more years, or no non-medical use of any other psychoactive substance (including alcohol) for two or more years.
The Anti-Drug Abuse Act of 1986 expanded the types of drug offenses that can render an alien deportable or excludable under the INA. Section 241(a)(11) of the INA, which previously only applied to those convicted of illegal possession or trafficking in narcotic drugs or marijuana, was modified to also include any law or regulation related to any controlled substance. See, Matter of Sum (an alien convicted of the use of a narcotic substance, as opposed to actual possession of a narcotic substance, is not excludable. However, it was proper for the immigration judge to find an alien twice convicted of using and being under the influence of PCP deportable). Further, the attempted posession of a controlled substance is also a deportable offense (Bronsztejn v. INS 2nd Cir 1975).
Foreign drug convictions can make someone deportable as well. In Matter of Dillingham (1997), the BIA upheld a finding of deportability in connection with a controlled substance violation in Great Britain, even though the conviction had been expunged pursuant to the UK’s rehabilitation statute and the alien would have been eligible for federal first offender (FFOA) treatment had he been prosecuted in the US. The alien was a 34-year-old native and citizen of Great Britian who had married his US citizen wife in England in 1991. He entered the United States in 1992 and overstayed his visitor visa. He applied for adjustment of status, and his application was denied in 1993 by the district director, finding him inadmissible persuant to INA 212(a)(2)(A)(i)(II) due to a 1984 conviction for posession of cocaine and marijuana in Great Britian. The alien argued that he had been a first offender and had been drug and crime free since his conviction. Further, he argued that the conviction had been expunged from his record under Great Britain’s Rehabilitation of Offenders Act of 1974. The immigration judge found that Dillingham met only three of the four parts of the test for federal first offender treatment and was ineligible for relief because his conviction and rehabilitative relief happened in a foreign country.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
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