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Non-Citizens with Controlled Substance Cases and Convictions Should Revisit Their Cases

Non-citizens with controlled substance cases and convictions should consider revisiting their cases, including those who already received a removal order.

On June 21, 2017, the Second Circuit Court of Appeals, issued a decision which has far-reaching effects on non-citizens who have been convicted of certain controlled substance offenses in New York.

In Harbin v. Lynch the respondent had been convicted of violating NYPL 220.31, criminal sale of a controlled substance in the 5th degree. The Department of Homeland Security filed charges against the non-citizen alleging that his conviction was a drug trafficking offense and an aggravated felony under the Immigration and nationality Act (INA).

The Second Circuit found that NYPL 220.31 was not a divisible statute and therefore was only required to apply the categorical approach in order to assess whether the statute was a controlled substance offense or an aggravated felony. When applying the categorical approach, the Court is only allowed to examine the statute of conviction and not the particular facts of the case. After applying the categorical approach, the Second Circuit found the term “controlled substance” under New York Public Health Law, includes a substance, chorionic gonadotropin, that is not a controlled substance under federal law. As a result, the Second Circuit found that NYPL 220.31 is not categorically a drug trafficking offense and the respondent was eligible to apply asylum and cancellation of removal.

Based on this holding, immigration attorneys can now make a strong argument that NYPL 220.31, as well as NYPL 220.03 and NYPL 220.06(1) are categorically not aggravated felonies and not controlled substance offenses as defined in the INA.

Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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