Controlled Substance Offenses

You are here


Controlled substance convictions may be both a ground of inadmissibility and a ground of deportability. Exceptions and waivers are available to some noncitizens.

Possession of one ounce or less of marijuana while driving is a controlled substance violation under INA § 212(a)(2)(A)(i)(II) and the petty offense exception at INA § 212(a)(2)(A)(ii) does not apply to controlled substance violations.  The Ninth Circuit held that the petty offense exception is never available to § 240A(b) cancellation applicants.  Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. 2010).  And a waiver under § 212(h) is not available even for a single offense of simple possession of 30 grams or less of marijuana.  Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011).

Applicants for cancellation of removal under 240A(b) are barred from relief if convicted of an offense listed under INA § 212(a)(2), 237(a)(2), or 237(a)(3).  INA § 240A(b)(1)(C).  This provision, unlike the grounds of inadmissibility requires a conviction and not merely a commission, “…has not been convicted of an offense…”  (emphasis added).  Although cancellation of removal requires the applicant also to establish good moral character and those who have committed a controlled substance violation are statutorily barred from establishing good moral character, the Ninth Circuit Court of Appeals has held that a guilty plea does not count as a formal "admission" of a drug offense.  Romero v. Holder, 568 F.3d 1054 (9th Cir. 2009).

The Ninth Circuit held in Lujan-Armendariz that no alien may be deported based on an offense that could have been tried under the Federal First Offenders Act, but is instead prosecuted under state law, where the findings are expunged pursuant to a state rehabilitative statute and the conviction is eliminated "for all purposes under the law."  Lujan-Armendariz v. Ashcroft, 222 F3d 728 (9th Cir. 2000); 18 USC § 3607(a).

The Ninth Circuit later clarified that Lujan-Armendariz applies to expungements under either Cal. Pen. Code §§ 1203.4(a) or 1203.4a(a), which “…dictate that the defendant ‘be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.’”  Ramirez-Altamirano, v. Holder, 563 F.3d 800 (9th Cir. 2009).

Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), prospectively reversed Lujan-Armendariz but only for convictions entered on or after July 14, 2012.  So noncitizens facing removal or ineligibility for certain immigration benefits who were convicted of simple possession of a controlled substance in California before July 14, 2012 are eligible for an expungement under Lujan-Armendariz that renders the conviction void for all purposes under the law including immigration purposes.


Call us at 408.797.0000

Call us at 408.797.0000

Call us for a consultation at 408.797.0000. We offer expert services and proven experience with complex issues that others can overlook.

Save this page


Who's Online

There are currently 0 users and 21 guests online.

visit us at:

  95 South Market St., Suite 363
    San José, CA 95113
 (408) 797-0000

  200 Washington St., Suite 208
    Santa Cruz, CA 95060
 (831) 245-0000

The Olender Pro Bono Project

We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.


Change Your Address at DHS!

If you are not a US citizen, you must change your address with DHS within 10 days of moving or face deportation. Click Here.