1. Minor Drug Offense

A conviction for even a minor drug offense—such as simple possession under RCW 69.50.4013, or attempt or conspiracy to possess—will make a noncitizen deportable and inadmissible under the controlled substances violations grounds. ¹⁵⁹

2. Possession of Less than 30 grams of Marijuana: There is an exception for one conviction of simple possession of less than 30 grams of marijuana: the person is not deportable and a waiver of inadmissibility under 8 USC § 1182(h) may be available. However, since RCW 69.50.4014 is simple possession of less than 40 grams of marijuana, it is imperative that defense counsel plead with specificity and make sure that the plea statement— and charging document and judgment and sentence if possible—clearly reflect that the defendant possessed an amount less than 30 grams.

3. Felony Simple Possession

A conviction for simple possession of a controlled substance that is a felony under Washington law—RCW 69.50.4013—is not an aggravated felony for immigration purposes, but is an aggravated felony for purposes of illegal reentry sentence enhancements in prosecutions under 8 USC 1326.

For immigration purposes, the measure of whether a state non-trafficking drug conviction is a "felony" and therefore an aggravated felony is whether the analogous federal drug offense is classed as a felony. Because simple possession is a misdemeanor under federal law, even a state felony conviction for simple possession will not be treated as an aggravated felony in immigration proceedings held in the Ninth Circuit. However, for purposes of criminal illegal reentry sentence enhancements, the test is whether the drug offense is classified as a felony under either state or federal law.¹⁶⁰ In its 2004 decision in Oliveira-Ferreira v. Ashcroft,¹⁶¹ the Ninth Circuit held a second possession conviction is not made a "felony" under federal law by virtue of a recidivist sentence enhancement. The court noted that a contrary case, U.S. v. Garcia-Olmedo, had been overruled by the en banc decision U.S. v. Corona-Sanchez. Thus in the Ninth Circuit the only simple possession convictions that should be held to be aggravated felonies are the simple possession of flunitrazepam or simple possession of more than 5 grams of crack cocaine. Those are the only simple possession offenses punishable as felonies (without the recidivist enhancement, which does not count for this purpose) under federal law.

Most Washington simple possession offenses—such as attempt or conspiracy to possess and possession of marijuana—are not aggravated felonies, even where the defendant has multiple simple possession convictions and one or more of them are felonies.

4. First Conviction for Simple Possession

If there are no prior controlled substance convictions, the Ninth Circuit’s Lujan-Armendariz decision states that a first conviction for simple possession (felony or misdemeanor including attempt or conspiracy to possess) that is eliminated under rehabilitative provisions will be deemed eliminated for immigration purposes.¹⁶²

This is also true if the first conviction is for an offense less serious than simple possession that is not analogous to a federal drug offense, such as being under the influence or possessing paraphernalia,163 or for giving away a small amount of marijuana (see 21 USC §841(b)(4)). Numerous types of Washington State rehabilitative relief will qualify a noncitizen to fall within the Lujan-Armendariz rule including:

•  Deferred Imposition of Sentence Dispositions: See Chapter 3 on Sentencing Strategies, section D, Suspended Sentences and Probation, pp. 40-41, supra.

• Drug Court Agreements: Note that the offense for which the defendant was Lujan-Armendariz rule the offense was

• Expungements pursuant to RCW 9.94A.640 and RCW 9.96.060; and

• First Time Offender Waiver (FTOW) under RCW 9.94A.650: A FTOW couldLujan-Armendariz analysis. Although an FTOW does notLujan-Armendariz applies. ¹⁶⁴ However, this outcome is only ensured where the defendant has actually obtained the rehabilitative relief and completed whatever process is required (e.g., drug court or deferred sentence probationary conditions). Whether the benefit of this analysis applies to a noncitizen who has a court order that would constitute rehabilitative relief—such as a deferred sentence order or drug court agreement—remains an open question. The Ninth Circuit recently held that simply having the possibility for future expungement of a simple possession conviction—such as what would be available under RCW 9.94A.640 or RCW 9.96.060—does not count. The defendant must have actually obtained the expungement prior to the initiation or completion of removal proceedings.¹⁶⁵ Except for a first conviction of one of these offenses, any “rehabilitative relief” (i.e., withdrawal of the plea after probation pursuant to a deferred sentence or an expungement pursuant to RCW 9.94A.640 (felony) and RCW 9.96.060 (misdemeanor)) has no effect for immigration purposes, even though state law may consider the conviction to be utterly eliminated.

5. Drug Addiction and Abuse and Drug Court

A person is inadmissible if she is a “current” drug addict or abuser, and deportable if she has been one at any time since admission to the United States.

Dispositions such as drug court placement that require admission of drug abuse or addiction will trigger these grounds. While in various immigration contexts more relief might be available to someone deportable for this than for a straight conviction, this still can have serious consequences and each case should be analyzed separately.However, if this is a noncitizen’s first time drug offense, he may fall within the Lujan-Armendariz exception analyzed above.¹⁶⁷ “Using drug paraphernalia “to propagate [or] manufacture” a controlled substance logically might not come with this exception, while personal “use” of paraphernalia to ingest a controlled substance, if equivalent to mere possession, logically should, under Cardenas-Uriarte. ¹⁶⁸

7. Case Examples 

• Joanne is convicted of her second possession offense, a misdemeanor conviction forpossession of marijuana. Her prior offense was an attempted possession of cocaine. Successful completion of a deferred sentence order or drug court will not eliminate the conviction for immigration purposes because it is not her first simple possession offense. Therefore she is now deportable and inadmissible for having a drug conviction. However, since neither offense is an aggravated felony, if Joanna has had had her greencard for at least 7 years (or 5 years and two years in any other lawful status) she will qualify to ask the immigration judge for cancellation of removal.¹⁶⁹

• Tariq is charged with felony drug possession. He admits to having a drug addiction and is given the option to participate in drug court. He successfully completes drug court and the charges against him are dismissed. If this is Tariq’s first offense, he is not deportable or inadmissible for the conviction under the Lujan-Armendariz rule. Tariq will not have a conviction for a controlled substance violation under immigration law. However, depending upon what admissions by him are in the record, Tariq may be deemed inadmissible and/or deportable for being a drug abuser or drug addict.

8. Defense Strategies for Low Level Drug Offenses

• Solicitation to Possess under RCW 9A.28.030: The Ninth Circuit has held that this offense is not a controlled substance violation or a drug trafficking aggravated felony under immigration law. If client has lawful immigration status—particularly a permanent residence or refugee/asylee status—this offense will avoid deportation/removal. However, a conviction for this offense may constitute a “reason to believe” (RTB) that the person has engaged in the illicit trafficking of drugs and thus trigger the ground of inadmissibility (it is not a ground of deportability). The Ninth Circuit has not ruled on this issue. For this reason, these noncitizens should not leave the country (even for brief departures abroad).

• Attempt or conspiracy to possess with deferred sentence is the best option to ensure that a first offense will not be a conviction under immigration law and thus, not a basis for deportation/removal. Unlike solicitation to possess, attempt or conspiracy to possess will not trigger the “reason to believe” inadmissibility ground. If successfully completed, it will not trigger and grounds of inadmissibility and, thus, will not create statutory bars to applying for immigration benefits (such as citizenship or permanent resident status). This resolution falls under the Lujan-Armendariz analysis described above. However, the risk of this strategy is that the plea may constitute a conviction under immigration law until the deferral is successfully completed. The Ninth Circuit has not resolved this issue yet. Thus, the person must remain in the country and have no contact with immigration authorities until the deferral is successfully completed. Defense counsel should negotiate for the shortest deferral period possible and advise clients to return for possible early dismissal as soon as possible.

• Charges dealt with via Drug Court, as with the deferred sentence option, constitute the requisite “rehabilitative relief” under the Lujan-Armendariz analysis articulated above. Therefore, simple possessory offenses resolved as successfully completed drug court agreements do not constitute convictions under the controlled substances grounds of deportation or inadmissibility. In addition to the Lujan-Armendariz analysis, drug court agreements using “immigration safe” language will not constitute convictions for immigration purposes.170 However, if the record contains documentation or admission that defendant is a drug abuser or drug addict, it will trigger the inadmissibility and deportation grounds relating to drug abuse/addiction.

• Being inadmissible affects permanent residents and undocumented persons differently. For undocumented persons, it is almost impossible ever to obtain permanent residency or any lawful status once inadmissible under this ground, even if the person has strong equities such as being married to a U.S. citizen or a strong asylum case. A permanent resident who becomes inadmissible, however, faces less severe penalties. The person cannot travel outside the United States, and will have to delay applying to become a U.S. citizen for some years, but will not lose her green card based solely on being inadmissible (as opposed to deportable, which does cause loss of the green card).If the controlled substance in the case is not specifically identified—either in the record of conviction or the terms of the statute—then the government is deemed unable to prove that the offense involved controlled substances and there are no immigration consequences.¹⁷¹ See Oliveira-Ferreira v. Ashcroft, 382 F.3d 104 (9th Cir. 2004); Matter of Santos-Lopez, 23 I. & N. Dec.419 (BIA 2002); U.S. v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002); U.S. v. Arrellano-Torres, 303 F.3d1173 (9th Cir. 2002).

¹⁶¹ 382 F.3d 104, 2004 U.S. App. LEXIS 18988 (9th Cir. 2004)

¹⁶² Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the exception is based on the Federal FirstOffender Act (FFOA), see 18 USC § 3607

¹⁶³ Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

¹⁶⁴ Chavez-Perez v. Ashcroft, 386 F.3d 1284; 1290 (9th Cir. 2004).

¹⁶⁵ See Chavez-Perez v. Ashcroft, 386 F.3d 1284; (9th Cir. 2004).

¹⁶⁶ Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000).

¹⁶⁷ Cardenas-Uriarte v. INS, 294 F.3d 1132 (9th Cir. 2000).

¹⁶⁸ Id. at 1138, n 6: “…[W]e can also imagine crime[s] for possession of drug paraphernalia that Congressmay consider more serious than simple possession of a controlled substance, if, for example, a defendantwere found in possession of the ingredients and machinery to create methamphetamine.”

¹⁶⁹ For more information, please see Part II, Section C of this manual – Quick Guide to Cancellation ofRemoval for Legal Permanent Residents.To learn more about “immigration safe” language for drug court and other deferred adjudicationagreements, please go to the Immigration Project link on the WDA’s website at http://www.defensenet.org.Matter of Paulus, 11 I&N 274 (BIA 1965).

¹⁷⁰ To learn more about “immigration safe” language for drug court and other deferred adjudication agreements, please go to the Immigration Project link on the WDA’s website at http://www.defensenet.org.

¹⁷¹ Matter of Paulus, 11 I&N 274 (BIA 1965).