Generally, if a foreigner has been convicted under a STATE LAW for possession of marijuana with intent to distribute she will be considered to be deportable for having committed an "aggravated felony." Once this finding has been made the foreigner will have very limited defenses in immigration court. Basically, a conviction that translate into an "aggravated felony" for immigration purposes will lead almost invariably to an order of deportation.
However, the Board of Immigration Appeals in Matter of Castro Rodriguez, 25 I&N 698 (BIA 2012) has given an option to lawful permanent residents convicted of these crimes. It allows the foreigner to attempt to prove that she was in possession of a small amount of marijuana, and that her intent was to distribute that small amount of marijuana for no remuneration.
A typical case would be where a foreigner was in possession of a small amount of marijuana that she was going to share with her friends at a party. If she is arrested she will be charged with possession of marijuana with intent to distribute. The "intent to distribute" part is charged because the foreigner had the intent of sharing the marijuana with her friends. Note that the foreigner was not going to sell the marijuana, she was just going to divide it up among her friends.
If the Department of Homeland Security tries to deport the foreigner by charging her with having committed an "aggravated felony," she must be given the opportunity in Immigration Court to prove by any evidence available to her that she was in possession of a small amount of marijuana and that while she did have intent to distribute, she did not have the intent of receiving money in exchange for the marijuana.
If she is successful then several opportunities will open up to the foreigner in her case. Most notably, she may be eligible for cancellation of removal.
For more information please contact Carlos Mauricio Duque, Esq. at 305-436-0155.
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