U.S. immigration Consequences of Drug Possession Offenses

Since the early 1980's and the Reagan era's War on Drugs, the United States has taken an extremely harsh, even draconian, position with respect to unlawful drugs. As part of the War on Drugs, the U.S. Legislature enacted tough new drug laws that included harsh sentences for what were previously considered minor drug offenses. Many drug offenders were sentenced to long prison terms under the new mandatory minimum sentencing guidelines. The legislative reaction to the War on Drugs in the U.S. was broad and was even incorporated into U.S. Immigration law.

Section 212 of the Immigration and Nationality Act sets forth several “grounds of inadmissability” or reasons the government may exclude a prospective immigrant from entering the U.S. The section which relates to convictions for drug or controlled substances crimes is INA §212(a)(2)(i)(II). That section of law states that:

Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

In plain English, this section says that anyone who is convicted of a controlled substance crime or even admits having engaged in conduct that would be a controlled substance crime is inadmissible. Notice how broad this language is—it includes a violation of any controlled substance law. It is not necessary for there to be any sort of conviction—just an admission—and this law has even been applied to those convicted of being under the influence of drugs. There is only one exception to this rule and it is for simple possession of less than 30 grams of marijuana. See INA §212. There are no other exceptions and there are NO WAIVERS that apply to this grounds of inadmissibility.

Currently, there is simply no relief under U.S. immigration law for foreign nationals wishing to immigrate who have convictions for drug crimes. For this reason it is very important that all foreign nationals in the U.S. (and outside the U.S. if they plan to immigrate to the U.S.) consulate with an immigration attorney before entering a plea to any crime which relates to controlled substances.