Controlled Substance Convictions and Immigration Law

Section 212(a)(2)(A)(i)(II) of the Immigration & Nationality Act (“INA”) states that individuals convicted for violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance” are not admissible to the United States. This statute is interpreted broadly and is strictly applied. However, under certain circumstances, there is hope for those individuals who are not admissible due to a controlled substance conviction.

Section 212(h) of the INA provides a waiver for a conviction of a single offense for simple possession of 30 grams or less of marijuana. However, this waiver falls within the discretion of the Attorney General and may not be granted. Also, the waiver does not apply to convictions for possession of more than 30 grams of marijuana or for other controlled substances. So, what if your waiver is denied or you do not qualify for the waiver to begin with? What then?

For individuals living in the Ninth Circuit, the Federal First Offender Act (“FFOA”) can help avoid the negative consequences of a controlled substance conviction. 18 U.S.C. section 3607. The Ninth Circuit consists of the following States: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The Ninth Circuit has held that an individual convicted of possession of a controlled substance is still admissible to the United States if the offense qualifies for FFOA treatment. See Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
Further, the Board of Immigration Appeals (“BIA”) has also held that the FFOA applies to those who are prosecuted under state law so long as the individual (1) was a first time offender; (2) was convicted of simple possession; (3) never received first offender treatment under any law; and (4) received an order pursuant to state rehabilitative statute dismissing the criminal proceedings. See

In re Manrique, 21 I&N Dec. 58 (BIA 1995); see also Lujan-Armendariz v. INS (holding that the new definition of “conviction” did not repeal the FFOA) and Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Or. 2004) (emphasizing that the FFOA is a narrow exception to the new definition of “conviction” and that an expungement pursuant to a state rehabilitative statute where the offender merits FFOA relief cannot serve as a basis for removal).

It must be noted that Lujan-Armendariz was overruled on July 14, 2011. However, the case was only overruled prospectively, which means the FFOA can still potentially waive convictions occurring before July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011); see also Lopez-Vasquez v. Holder, 706 F.3d 1072 (9th Cir. 2013) (recognizing the application of Lujan-Armendariz for state court convictions entered before July 14, 2011).

If you have been convicted for a simple possession of a controlled substance, please consult an experienced immigration attorney to determine what your options are. As a pre-consultation guide, you may have options if: (1) you live in the Ninth Circuit, (2) your conviction occurred prior to July 14, 2011, (3) you are a first-time offender, (4) convicted for simple possession only, and (5) have never received any first offender treatment under any law.