Controlled Substances Offenses and Immigration Consequences

In New York State, Controlled Substance crimes are found in New York Penal Law Article 220. Generally not as severe but potential felonies nonetheless, Marihuana crimes are found in New York Penal Law Article 221. Irrespective of whether you are a foreign national and student who receives a Desk Appearance Ticket for going to a concert and getting caught with MDMA (Molly or Ecstasy), a tourist the NYPD arrests after you purchased cocaine or heroin from a dealer, or a working professional foolish or brazen enough to flout the law and you are arrested for smoking a marijuana – weed, a joint, a hit from a pipe or bong – there are potential consequences to your actions beyond New York’s criminal law. Even worse, if your conduct involves the sale of a controlled substance or marijuana, there can be more severe ramifications. As your criminal defense lawyer will explain, outside of what an Assistant District Attorney offers (or doesn’t offer) as a plea or non-criminal resolution in Brooklyn, Queens, Manhattan or any jurisdiction, you must always be aware of how your H1B, F1, or green card may be affected and how the resolution to your case could adversely impact your naturalization, current status or future admissibility. In the worst case scenario, deportation is lurking just around the corner.

• Crimes Involving Moral Turpitude (CIMT) and Your Immigration Status
• Aggravated Felonies and Your Immigration Status
• Crimes Against Children and Your Immigration Status
• Domestic Violence Crimes and Your Immigration Status
• Firearm Crimes and Your Immigration Status
• Prostitution Crimes and Your Immigration Status

Certain Controlled Substance crimes can also be deemed Aggravated Felonies and Crimes Involving Moral Turpitude (CIMT) to create a lethal cocktail to your otherwise lawful immigration status. Potential grounds for deportation and future inadmissibility, Controlled Substance convictions that involve “drug trafficking” should be avoided if possible at all costs. A “drug trafficking” offense often involves a sale of drugs or the intent to sell the same. Alternatively, if your conviction fits into a Federal offense, even though it’s not what one would think of as trafficking, it can be considered an Aggravated Felony.

Crimes found in the New York Penal Law that must be avoided to best protect your current status and future admissibility include (not a complete list nor an analysis of each subsection):

• Misdemeanor Seventh Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.03
• Misdemeanor Fifth Degree Criminal Possession of Marihuana: New York Penal Law 221.10
• Misdemeanor Second Degree Criminally Using Drug Paraphernalia: New York Penal Law 220.50
• Felony Fifth Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.06
• Felony Fourth Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.09
• Felony Third Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.16
• Felony Fifth Degree Criminal Sale of a Controlled Substance: New York Penal Law 220.31
• Felony Fourth Degree Criminal Sale of a Controlled Substance: New York Penal Law 220.34
• Felony Third Degree Criminal Sale of a Controlled Substance: New York Penal Law 220.39
• Felony Third Degree Criminal Possession of Marihuana: New York Penal Law 221.20
• Misdemeanor Driving While Intoxicated Drugs: Vehicle and Traffic Law 1192(4)

Regardless of nationality, a drug court and pre-plea diversion program (or post-plea) can often be a tremendous means to overcome a strong felony drug case as well as way to address addiction. On its face, avoiding a conviction is the best case scenario. For an American citizen, this is certainly a fair statement if the facts and evidence are insurmountable. However, something you should discuss with your criminal defense attorney, and in greater detail with your immigration lawyer should you desire, is the fact that an admission or allocution to drug abuse could be grounds to deportation even if you are not admitting to trafficking narcotics or drugs. Be cautious and be informed.

Simple or personal possession crimes, including New York Penal Law 220.03 as it relates to heroin, MDMA, cocaine and LSD (other drugs as well), and New York Penal Law 221.10, as it relates to marijuana, can be grounds for inadmissibility if not deportation. That is right. You if are smoking a joint, have a dime bag or just taking a bump and the police give you a break with a Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the Seventh Degree or Criminal Possession of Marijuana in the Fifth Degree after they arrest you, your trouble may only be beginning. Non-citizens must be sure to avoid an admission on the record of drug abuse or a conviction for these offenses for reasons beyond the criminal. In the event the substance is marihuana, be careful not to admit to possessing thirty or more grams as you may become a recipient of additional issues as it relates to your legality to remain in the United States.

If you are involved in creating, selling, or otherwise using a forged or fraudulent prescription to secure drugs or you make some misrepresentations when obtaining either a prescription or other controlled substance and you are sentenced to a year or more in jail, your conviction may trigger an Aggravated Felony as it relates to crimes involving false documents. As such, the multiple degrees of Criminal Diversion of Prescription Medications and Prescriptions, New York Penal Law Article 178, should be avoided even though these offenses do not carry the same stigma as street level drug crimes.

Even if you do not possess or sell heroin, cocaine, crack-cocaine, LSD or MDMA and you are not part of a trafficking ring selling kilos or significant weights of narcotics, you may still face serious problems in maintaining your status, future admissibility and dealing with deportation. Obviously a sale or possession with intent to sell will aggravate or compound a case, but a conviction for possessing scales, glassines, and other paraphernalia can still set you up for failure on the immigration front. New York Penal Law 220.50, Second Degree Criminally Using Drug Paraphernalia, is a misdemeanor crime that should raise red flags for you and your criminal lawyer. Felony First Degree Criminally Using Drug Paraphernalia, New York Penal Law 220.55 is even worse. Keep in mind, you and your counsel, as well as an immigration lawyer, should determine your exposure to the “drug trafficking” section of the Aggravated Felony statute.

Every case has a unique set of facts. That said, admitting to selling a controlled substance, trafficking drugs, possessing drugs or being an addict can open the door to significant immigration issues.

• New York Drug Crimes, Defenses and Blog

Whether you are in business school or you are a physician who was given a NYC Desk Appearance Ticket to appear in Manhattan after you were out partying with some recreational drugs or you were involved in the sale of marihuana to an undercover police officer in Brooklyn, a conviction for a drug crime and controlled substance offense can turn back the clock on everything you have worked for in and to come to the United States. Don’t ruin your future. Protect yourself. Take the time to read the materials contained throughout the Saland Law websites (the content merely touches on some offenses, defenses and consequences, but by no means is complete examination of all crimes and consequences). Upon doing so, contact the criminal defense attorneys and former prosecutors at Saland Law and let their experience and knowledge work for you.

Call the New York criminal lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.