Drug Trafficking and Deportation: Clean Your Record
Under Federal Law, a noncitizen who is convicted of drug trafficking is deportable as an aggravated felon. An aggravated felony is a federal “immigration law” concept that allows the deportation of noncitizens in an expedited fashion because an “aggravated felony” conviction prohibits many otherwise available immigration reliefs (such as asylum, cancelation of removal, etc).
if you are facing a deportation or an immigration related problem because of a criminal case or a criminal conviction, contact Los Angeles Post Conviction Attorney Alex Andryuschenko for a free consultation as to how he can help you clean your criminal record Los Angeles criminal case.
The deportation ground for “drug trafficking” is found in 8 U.S.C 101 (a)(43)(B). The deportation ground for aggravated felony is found in 8 U.S.C 1227(a)(2)(A)(iii).
If a non-citizen is removed from the US and re-entered the US without permission (inspection) he can be charged with a violation of 8 USC 1326(a) a crime of illegal re-entry. Thus, a conviction for aggravated felony exposes a person to federal prison because being in the US after deportation is a crime. One of the ways to fight an 8 USC 1326(a) accusation is by challenging the removal order based on the original conviction not being an aggravated felony. The challenge for 8 USC 1326(a) accusation is found in 8 USC 1326(d). 8 USC 1326(d) has 3 elements (1) exhausting of administrative remedied (2) deprivation of judicial review (3) fundamental unfairness of the order. These elements are from the Supreme Court decision in 593 US 321 (US v. Palomar-Santiago), a 2021 decision by Justice Sotomayor.
CATEGORICAL APPROACH
Recently, in a court decision of US v. Morales-Rodriguez, the court granted a motion to dismiss the indictment under 8 USC 1326(d) because the federal drug definition is narrower than the California drug definition. When comparing a State California statute for drug possession with a Federal Statute (under US v. Werle 877 F.3d 879, 881), the court must ignore the defendant’s conduct and instead focus on the generic elements of the statute. This is known as the Categorical Approach. Under Moncrieffe v. Holder 569 US 184, 191 the court analyzed federal and state statutes by comparing them and concluding that when a state statute has more or different elements than the federal statute, the state statute is considered categorically broader than the federal statute and the offense cannot be an aggravated felony. Next, when the statute is broader, the court must determine if the statute is divisible and contains more than one crime. If the court decides that the statute is divisible, then the court must decide which specific crime the person has committed and if that crime is an aggravated felony (Mathis v. US 579 US 500). However, when the state statute is both broader than the federal statute and not divisible into separate crimes, then the conviction under the state crime cannot equate to a conviction of the federal crime (Rendon v. Holder 764 F.3d 1077, 1083). This is why a California burglary conviction under PC 459 is not considered a crime under the federal statutes and cannot be used to deport an individual.
In Morales-Rodriguez, the court decided that the California drug possession statute (HS 11378) is more expensive than the federal drug possession statute under 8 USC 1101(a)(43)(B) – holding that California HS definition of methamphetamine is broader than the federal definition of methamphetamine. Thus, under California law, a person can be convicted for possession of a substance that would not be a controlled substance under Federal law. The court dismissed the criminal indictment because the state drug conviction does not qualify as an aggravated felony conviction under Federal law.
Los Angeles criminal defense attorney will help you defend your criminal case. A substantial part of our practice is post-conviction relief where we move to vacate convictions as a first step in helping defendants in immigration proceedings. Call Los Angeles Criminal Defense attorney now for your free consultation. You can reach Los Angeles post conviction attorney at (323) 464-6424.
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