Aliens who have controlled substance convictions are generally deportable and ineligible for adjustment of status (with certain exceptions for simple possession of 30 grams or less of marijuana).
Whenever an alien enters a guilty plea or nolo contendere or admits sufficient facts to warrant a finding of guilt, for which the judge has ordered some form of punishment, penalty or restraint on the alienís liberty, the alien becomes deportable and inadmissible. See definition of conviction in 8 U.S.C. section 1101(a)(48)(A).
This definition of conviction leaves most of the aliens with simple possession convictions out of luck. These individuals cannot apply for adjustment of status through their immediate relatives U.S. citizens and may be deported from the United States even after years of being in lawful permanent resident status. The length of time that has passed since the entry of judgment does not matter for immigration purposes. Thus aliens that had drug convictions adjudicated years ago would be treated the same way for immigration purposes.
Prior to July 14, 2011, in 9th Circuit, aliens who had their first simple drug possession convictions expunged under state rehabilitative statutes, qualified for relief: the immigration consequences of their first simple drug possession convictions were eliminated pursuant to Lujan-Armendariz v. I.N.S., 222 F. rd 728 (9th Cir. 2000).
Generally, rehabilitative relief is expungement or other withdrawal of plea
after successful completion of probation, such as, in California, under Deferred Entry of Judgment, Penal Code 1203.4, or Proposition 36.
On July 14, 2011, the Ninth Circuit, sitting en banc, withdrew from the Lujan-Armendariz decision and held that "rehabilitative relief" will no longer eliminate a first
conviction for simple possession drug offense (Nunez-Reyes v. Holder, 7/14/11).
Under Nunez, aliens with first simple possession drug convictions that were expunged under state rehabilitative statutes will be ineligible for adjustment of status and will be deportable.
It is worth noting that Nunez applies only prospectively. The Court held that ď[f]or those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan-Armendariz is overruled."
Therefore, according to the Courtís ruling in Nunez, aliens who were convicted before July 14, 2011 will be treated under Lujan, will receive the benefit of state rehabilitative laws and will have their conviction eliminated for the immigration purposes allowing some forms of relief, and the aliens convicted after July 14, 2011, will not receive these benefits.
Thus, in immigration proceedings under the jurisdiction of the 9th Circuit, for aliens who had only one simple possession drug conviction and whose conviction was expunged upon successful completion of probation or drug diversion program pursuant to a state rehabilitative statute, the immigration consequences of such conviction will be eliminated if the conviction occurred before July 14, 2011.
Even though the new 9th Circuit ruling has drastically changed the long-established precedent, it does not apply to aliens convicted before the date the case was published. These aliens will still be able to take advantage of the earlier 9th Circuit precedent, set forth in Lujan.
Jacob J. Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.