July 6, 2009: Can a Person Deported for Cocaine Trafficking Reenter the US After Deportation
Can a Person Deported for Cocaine Trafficking Reenter the US After Deportation?
My husband was convicted of trafficking cocaine and was deported. What are his chances of re-entering the country if he is married to an American?
Without having more information about the criminal statute (either Federal or state) that served as the basis for your husband’s deportation, for purposes of answering this question, we are going to assume that it was an `aggravated felony’ drug trafficking conviction under the Immigration and Nationality Act (INA). An `aggravated felony’ according to INA section 101(a)(43)(B) includes the “illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18).” In turn, 18 U.S.C.A. § 924(c) defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (21 U.S.C.A. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C.A. 951 et seq.), or chapter 705 of title 46.” Under 8 U.S.C.A. § 1182(a)(9)(A)(ii), a noncitizen is permanently inadmissible if he or she has been “convicted of an aggravated felony.” This means that your husband, if he was deported for an aggravated felony, is permanently barred from being admitted into the United States. If he returns to the United States unlawfully, he is subject to being convicted of a felony with a possible imprisonment term of 20 years.
One way of possibly lifting this permanent bar to admission is to have the criminal conviction vacated. To do this, you would have to contact an experienced criminal attorney who will review the record of the criminal proceedings and relevant criminal case law and statutes to determine if your husband is eligible to have the conviction vacated.
In many situations, it is impossible to have the conviction vacated. It would be wise to contact a criminal attorney with extensive experience in vacating convictions. Also, it would be wise to consult with an immigration attorney who could review the record of immigration deportation proceedings with an eye towards possibly uncovering a defect in those proceedings.
Michael Shane and Evan Shane, Immigration Attorneys