Immigration

Grounds for Removal: Controlled Substance Offenses

The primary immigration laws are contained in the Immigration and Nationality Act (INA). Much of the enforcement of immigration laws is handled by the Department of Homeland Security (DHS), work that the Immigration and Naturalization Service used to perform until passage of the Homeland Security Act of 2002, which took effect in 2003. The Department of Justice administers the adjudication of the immigration laws, through a special group of immigration judges.

The INA lists a number of types of activities that can make one inadmissible or deportable. These primary activities relate to immigration violations, national security and terrorism activities and criminal violations.

Any alien who has been convicted of a violation of or conspiracy or attempt to violate any law or regulation of a state, the United States or a foreign country relating to a controlled substance is inadmissible. Also, any alien who the consular officer or immigration officer knows or has reason to believe is or has been an illicit trafficker in any controlled substance or is or has been a knowing assister, abettor, conspirator or colluder with others in the illicit trafficking in any controlled substance is inadmissible. Any alien who has admitted to or been convicted under any law or regulation of a state, the United States or a foreign country relating to a controlled substance is deportable.

For there to be an admission, the alien must admit to all of the acts constituting the essential elements of the crime. An alien need not admit the legal conclusion of guilt, provided he or she admits all the essential elements of the crime or the attempt or conspiracy to commit the crime. A conviction may be proved by an official record or certification that is shown to relate to the alien.

Conviction

The term "conviction," as used in the INA, means a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed.

Admission

The term "admission" as used in the INA, means that that alien admits to having committed the acts that constitute the essential elements of a crime. Also, it must be clear that the conduct in question was a crime under the law where it was committed, and the alien must have been clearly advised of the essential elements of the crime.

To be clearly advised of the essential elements of the crime means that the alien was furnished with an adequate definition of the crime in understandable terms. Made without such an adequate definition, the alien's statement is not a valid admission. Merely reading or translating the law may not be acceptable for this purpose, particularly if the alien's level of comprehension is questionable. On the other hand, it may be sufficient in some situations to read or paraphrase the law, if it appears that the alien understands the nature of his or her conduct and its relation to the statute. Generally it is enough if the definition given is substantially similar to the text of the law.

The admission must be unequivocal and unqualified; it must be made by the alien himself or herself, and a concession of guilt by the alien's attorney may be unacceptable. Also, the admission must be freely and voluntarily made. It will not be valid if induced by coercion or misrepresentation.

Controlled Substance Traffickers

An illegal trafficker in controlled substances does not necessarily entail proof of organized and continuous trade in narcotics. An alien who brings narcotics for sale into the US on a single occasion may be considered a trafficker. Additionally, an illegal trafficker is inadmissible even if there has been no criminal charge or conviction for the offense, as long as the consular or immigration officer "knows or has reason to believe" that he or she is engaged in such illegal traffic.

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