ALR Articles:
76 A.L.R. Fed. 2d 107 (Originally published in 2013) "Construction and Application of § 212(A)(2)(C) of Immigration and Nationality Act (INA), 8 U.S.C.A. § 1182(a)(2)(C), Providing That Alien is Inadmissible if Attorney General Knows or Has Reason to Believe That Alien is or Has Been Illicit Trafficker in Any Controlled Substance," Lonnie E. Griffith, Jr., J.D.
98 A.L.R. Fed 750 (Originally published in 1990) "Effect of Expungement of conviction of § 241(a)(4), (11) of Immigration and Nationality Act of 1952 (8 U.S.C.A § 1251(a)(4), (11)), making aliens deportable for crimes involving moral turpitude or drugs," Gregory G. Sarno, J.D.
Law Review Articles:
Bates, Things That You Might Not Know But Should Know About Immigration Consequences For Noncitizens With Criminal Convictions, 53 Fed. Law. 40 (2006).
Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669 (2011).
O'Connor, Understanding the Categorical and Modified Categorical Tests, 57 Federal Lawyer 48 (2010).
Sweeney, Fact or FICTION: The Legal Construction of Immigration Removal for Crimes, 27 Yale J. on Reg. 47 (2010).
22 C.F.R. § 40.21(b) provides an alien is inadmissible regardless of when the violation of a law or regulation relating to a controlled substance occurred.
8 C.F.R. § 1212.1 provides that 'controlled substance' includes any substance listed in 21 C.F.R. §§ 1308.1 et. seq. in Schedules I - V, and 'controled substance' includes those defined in 21 U.S.C. § 813.
8 C.F.R. § 212.4 provides procedural requirements for various grounds of inadmissibility.
General Rule:
8 U.S.C. § 1182(a)(2) provides that any alien who has been convicted of or who admits to acts that satisfy the elements of a violation of any law or regulation relating to a controlled substance, or a conspiracy to violate a law relating to a controlled substance, is inadmissible. This violation of law includes any federal, state, or foreign law relating to a controlled substance as defined in the Controlled Substances Act 21 U.S.C. § 802 and in 21 U.S.C. § 813.
8 U.S.C. § 1182(a)(2) provides that aliens who are drug traffickers, or in some situations children or spouses of drug traffickers, are inadmissible.
Waivers:
8 U.S.C. §1182(d) a waiver of inadmissibility may be granted for victims of severe trafficking in persons, if it is in the national interest, and if the inadmissibility was caused by or incident to the trafficking, except for inadmissibility due to security related grounds, international child abduction, or former citizens who renounced citizenship to avoid taxes. Cross reference 8 U.S.C. § 1101(a)(15)(T) for criteria to identify victims of human trafficking.
Also, under 8 U.S.C. § 1182(d) any grounds of inadmissibility, except participation in Nazi persecutions or genocide, may be waived if the alien is a non-immigrant witness with information about a crime or terrorism. Cross reference 8 U.S.C. § 1101(a)(15)(U) and 8 U.S.C. § 1101(a)(15)(S) for criteria to identify qualifying victims of crimes or witnesses.
Exceptions:
21 U.S.C. § 844a provides for expungement of first time convictions of simple possession of a controlled substance and aliens who have applied for such expungement are not necessarily inadmissible.
18 U.S.C. § 3607 provides for expungement only if the possession of a controlled substance conviction was first-time offense and the offender was under age 21.
U.S. v. Holder, 741 F.Supp. 27 (D.P.R. 1990) (judgment aff'd, 936 F.2d 1, 105 A.L.R. Fed. 871 (1st Cir. 1991) (holding a conviction for a drug offense is usually a permanent bar to becoming a lawful permanent resident).
Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) (holding the federal statutes defining 'controled substance' only lists which drugs are controled substances for purposes of inadmissibility and state drug laws do not need to be 'defined in' a federal statute in order to be grounds for inadmissibility).
Nunez-Payan v. I.N.S., 815 F.2d 384 (5th Cir. 1987) (holding an alien to be inadmissible based only on an admission to acts constituting controlled substance trafficking, officials can exclude an alien even if the alien has not been convicted).
Matter of Ozkok, 19 I. & N. Dec. 546, 1988 WL 235459 (B.I.A. 1988) (holding an alien is 'convicted' if 'the court adjudicated that person guilty or entered a formal judgment of guilt.').
Duarte-Vestar v. Gonzales, 175 Fed. Appx. 770 (7th Cir. 2006) (holding evidence sufficient to support a finding that an alien was 'convicted' of a drug offense based only on a copy of a judgment and an FBI criminal record against a man with the same name and date of birth).
In the Matter of P--, 5 I. & N. Dec. 190, 1953 WL 7426 (B.I.A. 1953) (defining 'trafficking' and 'trafficker,' as relates to drug trafficking, for immigration purposes).
Correa v. Thornburgh, 901 F.2d 1166 (2d Cir. 1990) (holding alien's argument that importing a kilogram of cocain is not drug trafficking is 'patently frivolous' because this amount is too much for personal use).
Liao v. Rabbett, 398 F.3d 389 Fed.App. 0053P (C.A.6. Ohio, 2005) (holding a conviction in state court can count as a 'drug trafficking crime' if it is a felony and if it is punishable under the Controlled Substances Act 21 U.S.C. § 802).
Hamid v. U.S. I.N.S., 538 F.2d 1389 (9th Cir. 1976) (holding 'marijuana' includes all parts and products derived from Canabis).
Matter of Favela, 16 I. & N. Dec. 753, 1979 WL 44443 (B.I.A. 1979) (holding if an immigration officer has reason to believe an alien is a drug traficker the alien can be denied entry into the U.S. even if a criminal complaint has been dismissed).
Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (holding if an immigration officer has reason to believe an alien is a drug traficker the alien can be denied entry into the U.S. even if a criminal complaint has been dismissed).
Matter of Rico, 16 I. & N. Dec. 181, 1977 WL 39246 (B.I.A. 1977) (holding if an immigration officer has reason to believe an alien is a drug traficker the alien can be denied entry into the U.S. even if a criminal complaint has been dismissed).
Castano v. I.N.S., 956 F.2d 236 (11th Cir. 1992) (holding even an expunged conviction is enough for an immigration official to deny admission into the U.S. to an alien known or reasonably believed to be a trafficker in narcotics).
Talioaga v. Gonzales, 212 Fed. Appx. 612 (9th Cir. 2006) (holding an alien was inadmissible due to an admission of marijuana use to a physician and psychiatrist during examinations for a visa application).
Macias-Carreon v. Holder, 2013 WL 2350477 (9th Cir. 2013) (holding a violation of a state law regarding posession of marijuana for sale made an alien inadmissible).
Desai v. Mukasey, 520 F.3d 762 (7th Cir. 2008) (holding an alien was inadmissible under drug trafficking laws for selling a substance that was claimed to be halucinogenic drugs even though it did not really contain any illegal drugs).
Matter of Ozkok, 19 I. & N. Dec. 546, 1988 WL 23549 (B.I.A. 1988) (holding 'conviction' means the alien was either adjudicated guilty or the court entered a formal judgment of guilt).
Murillo-Espinoza v. I.N.S., 261 F.3d 771 (9th Cir. 2001) (holding that for immigration purposes a conviction of an aggravated felony precludes making an exception based on subsequent expungement).
Gomez-Granillo v. Holder, 654 F.3d 826 (9th Cir. 2011) (holding immigration officials may only make a determination that they have 'reason to believe' an individual is a drug trafficker based on information available to them before the alien entered the U.S. after lawful inspection and authorization.
