Gone, But Not For Good: Drug Convictions Now Remain Convictions for Immigration Purposes Despite Being Eliminated at the State Level

Today the Ninth Circuit Court of Appeals overruled the prior Lujan-Armendariz decision and held that “rehabilitative relief” will no longer eliminate a first conviction for simple possession of a controlled substance or a similar other minor drug offense. Generally, rehabilitative relief is expungement or other withdrawal of plea after successful completion of probation, such as, in California, under Deferred Entry of Judgment, a record clearance under California Penal Code Section 1203.4, or Prop 36. The good news is that the decision will apply only PROSPECTIVELY. This means that persons who had sought and obtained rehabilitative relief for simple drug possession or a lesser offense can still consider their drug convictions eliminated for immigration purposes.  On the contrary, convictions received after the date of publication of the decision in mid-July 2011 will not be able to expunge their simple drug possession conviction and eliminate it for immigration purposes. 

This is a major departure from prior immigration law in the 9th circuit, in which California is included.  If you or a family member have pending drug charges, seek the advice of a competent immigration and criminal defense attorney immediately.  Entering a plea of not guilty to simple possession or under the influence of a controlled substance can have devastating effects for a non-permanent resident who later seeks a green card or cancellation of removal.