Drug Offenses – Waivers? Or Pardons?

An immigrant who has been convicted of  selling or possession of a controlled substance, such as cocaine, heroin, or more than 30 grams of marijuana who has admitted having committed this crime, is deportable and/or excludable from the U.S.   This deportation or exclusion precludes any exception even if the drug offender has a U.S. citizen spouse, U.S. citizen parent, or U.S. citizen child.  This harsh sanction allows no exemption in spite of the  offender’s immediate family who would suffer irremediable hardship as a result.

The only exception under the law for drug use is for simple possession of fewer than 30 grams of marijuana.  An immigrant who returns after deportation for drug abuse would have no rights to plead for readmission and would clearly be inadmissible.

Whether the drug conviction is classified as a misdemeanor or of a felony is not relevant. Possession or sale or the conspiracy to sell or possess a controlled substance imposes an absolute and unremitting expulsion or bar to return to the U.S. regardless of any other consideration.   The federal statutes impose a lifeline exclusion of deportation even for mere attempts to commit an act or conspiracy to commit the crime.

Controlled substances are defined in the statutes, generally applying to such drugs as cocaine, heroin or more than 30 grams of marijuana.

A full and unconditional Pardon by the President or a Governor of a State, or a constitutionally designated executive office appointed by the President or Governor, may prevent deportation or allow readmission.  The Congress or a State legislator may not lawfully grant such a Pardon.  A Pardon granted by a foreign government would have no effect.  The law of Pardons lies only with the Chief Executive of our nation or of a State.  Full and unconditional Pardon of a drug crime which has created an inflexible Order of Deportation or Exclusion is the only remedy for the offender.  The Pardon mandatorily compels the Immigration Service to comply.

The Executive Pardon may well have been based on the recognition of  the extreme hardship to the immigrant’s immediate family, but for whatever reason, the Pardon of the President or Governor of a State is the sole path for an immigrant to stay in the U.S. or return to the U.S.