Driving under the influence of drugs - immigration consequences

Source: http://www.nwaonline.com/news/2012/jun/24/driving-drugged/

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

Steve presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's discussion points:

a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Petty drug exception - admissions vs. deportability. NOT THE SAME.

Here's the scenario:

Steve was working with a client in VA state court. He asked for advice on the immigiration consequence. He said: There was a client of mine who was charged with Possession with Intent to Distribute (Marijuana) in Fairfax. We got the charge amended to straight Possession and plead guilty. He did a couple of weekends in exchange for the amended charge. He recently traveled out of the country (against our advice) and upon his return, was given a date to meet CBP out at Dulles. Bad news. I’ve already told him that he is almost certainly going to get a NTA, and possibly detained. I have a possible solution for him: The cop really liked the client, and was a huge help in getting the charge amended. There was also not very much pot at the time of the arrest. If I can get a statement from the cop that would get this within the de minimis range, we might even be able to head this off at the CBP level. Even if that didn’t work, we would have that for his defense in the eventual Removal Proceedings.

My thought is to go with him out to Dulles in November. Because he already paid us to defend him in the criminal case, and because he is very likely going to have to pay us to represent him in Removal Proceedings, I was thinking XX for the CBP meeting only. (Removal Proceedings is a whole new ball of wax.) I can try to get some help from the cop to see if we can kill this and keep our guy in the country and out of Farmville.

This is a great case to discuss the difference between INA 237 (deporability when in the US) and INA 212 (inadmissibility) concerning the petty exception.

Because the client is a returning alien, his entrance into the United States is controlled by INA 212 (restrictions on admissibility) as opposed to INA 237 (deportability once in the US). The petty exception is quite different. In 237, the exception covers marijuana at 30 grams or less. In 212, no drugs are permitted – the petty exception covers only CIMT’s whose max sentence is 1 year or less, and whose actual sentence (served or given) is 6 months or less. Because possession is not a CIMT, the petty exception under INA 212(a)(2)(A) won’t work. Because our fella is an LPR, there is a different type of waiver available for drug convictions. It actually applies to any drug conviction, not just 30 grams or less of marijuana.

The exception is found under INA 212(h). There are requirements for this, though, and I’m not sure he’ll meet them. In this case, he would have to have been an LPR for at least 15 years, or he would need to have an immediate family member who would suffer an extreme hardship. For petty drug offenses, these waivers are granted fairly routinely. However, he will have to sit in immigration court, and he will have to go to a trial. Extreme hardship will require the case to be prepared and litigated, and as you know, DHS will argue against it as a matter of course.

A frank discussion with the client will explain all this to him, and prepare him for the process. You won’t be able to head this off at the CBP level. They lack the statutory authority to approve (well, that’s technically not correct – acting on behalf of the Attorney General, a CBP officer could waive him in. Not likely, though). He need us to spearhead a 212(h) on his behalf.

Do you have a question about admissibility or CBP? We can help! Contact us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Naturalization and Crimes Involving Moral Turpitude

I was recently given the following fact pattern, and asked about what, if any effect, it would have on naturalization. This is a good question, and it illustrates the limits of petty exception rule quite well:

Dear Sean: I have a potential client who has a conviction for Theft. He pled guilty and got 1 yr. Deferred Adjudication. The crime has a max sentence of no more than 1 yr. imprisonment. However, his deferred adjudication (i.e. they will drop the charges if he maintains good behavior for one year and performs certain community service obligations) was sentenced in excess of 6 months. The actual term of imprisonment was 100 days in the county jail (i.e time served pending the sentencing of deferred adjudication).

Based on this, is he eligible for petty offense exception? Should he wait to file for naturalization until he has some good equities?

Thanks for the question! The petty exception rule, for naturalization, is triggered by 8 CFR 316.10 (requirements for naturalization), and enumerated under 8 CFR 212(a)(2)(A)(ii)(II). The rule states:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- ... (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

So, for the petty exception, you need a couple of things.

1. The maximum sentence must be one year or less.
2. The sentence given must be 6 months or less, regardless of time actually served.

For example, if the crime had a maximum sentence of 1 year, and your client was given 1 year with all but thirty days suspended, he would not be eligible.However, if the crime has a maximum sentence of 1 year, and your client was given 30 days, all 30 suspended, he would be eligible. It is for this reason that a sentence of under one year is so important when dealing with petty criminal matters.

I agree with your assessment. He pled and was given what appears to be 1 year jail sentence, all time suspended as part of a deferred sentence. That’s still a conviction for immigration purposes. See, USCIS Policy manual.

Also, your fella may be placed in removal proceedings; this is a heightened risk if he committed the crime during the five year look back period. See paragraph H in the USCIS Policy manual

I am unclear whether this happened more than five years prior. You mention it might – but then give an August 2016 date. If it is more than 5 years prior, you could probably apply if you have really really strong equities to support rehabilitation. However, that a CIMT is a bar to cancellation, too. If he is placed in removal proceedings, he would have serious issues. Make sure you have a defense strategy such as 212(h) or something similar to stop the removal process if he is placed before the judge.

Do you have questions about immigration or criminal law? Call us! We would be glad to review your case and discuss options. Good legal advice is critical in the immigration arena. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com