FACTS:
A U.S. Lawful Permanent Resident client was arrested in Virginia for misdemeanor possession of marijuana under Va. Code Ann. Sec. 18.2-250.1. After pleading guilty, and without ever consulting an attorney – client decided to return home for vacation. Upon return to the U.S., he was detained at “secondary inspection” and given a deferred inspection appointment to return to CBP Dulles with a copy of his criminal record.
Again, without consulting an attorney, client returned to CBP with a copy of his arrest record and was arrested on the spot for being inadmissible under INA Sec. 212(a)(2)(A)(i)(II)- for conviction of an offense relating to a controlled substance.
Client then sat in U.S. Immigration Custody for weeks before finally retaining our office just a week before his hearing with the U.S. Immigration Court.
THE LAW:
A U.S. Lawful Permanent Resident (or almost any other non-U.S. Citizen) is inadmissible if they are convicted at any time for an offense relating to a controlled substance – including simple possession of marijuana, cocaine, or any other controlled substance.
Although a U.S. Lawful Permanent Resident may not be deportable for a conviction under Va. Code Ann. Sec. 18.2-250.1, they WILL STILL BE INADMISSIBLE.
A waiver for simple possession of marijuana is available under INA Sec. 212(h) if the applicant can show “extreme hardship” to their qualifying U.S. Citizen or U.S. Lawful Permanent Resident family members, but this is a discretionary waiver.
In addition, a person in removal proceedings may seek a form of relief known as prosecutorial discretion in very limited cases. ICE/Department of Homeland Security notes the following:
- If your administrative proceedings are pending before an immigration judge or the Board of Immigration Appeals but you believe that you do not fall within the DHS enforcement priorities, including if you believe you are eligible for DACA or deferred action, ICE may agree to administratively close your case upon request.
- You may submit your request to the ICE Office of the Principal Legal Advisor (OPLA). You (or, if you are represented, your legal representative) should submit your request for prosecutorial discretion to the mailbox of the OPLA field office that is handling your case. A link to the OPLA field office mailboxes is available here.
- Your request should include your full name, alien registration number (A-number), and the status of your case. You may also include the reasons you believe you do not fall within the DHS enforcement priorities, including if you believe you are eligible for DACA or deferred action.
- OPLA will consider your request promptly and provide a response to the e-mail address from which the incoming message was sent.
THE RESULT:
Examining the case, Mr. Miller quickly determined that this case was an excellent candidate for exercise of prosecutorial discretion. Although an alien may be inadmissible or deportable, he/she may be granted prosecutorial discretion by the ICE Office of Chief Counsel.
In this case, Mr. Miller quickly identified the important issues in the case, contacted the ICE Office of Chief Counsel and came to a favorable agreement with the ICE prosecutors. By the time of the client’s first hearing, and less than a week after retaining the firm, the client’s case had been terminated and the client was released from jail.
DISCLAIMER: All Case Results published here depend on specific facts and legal issues unique to the case. It is impossible to guarantee any results.
