Our law firm represents individuals charged with the possession and the possession with the intent to distribute or deliver illegal drugs and narcotics in Pennsylvania and New Jersey. For over a decade our criminal defense law firm has obtained outstanding results those charged with felony and misdemeanor offenses. While these are very difficult and complicated cases, a person’s immigration status and potential for deportation raises the stakes for individuals charged with these crimes.
Under normal circumstances, a person faces possible county jail incarceration, a state prison sentence, or a period of probation or parole. A person who isn’t a citizen faces all these potential consequences but also runs the risk of deportation if charged and convicted of a drug crime in either Pennsylvania or New Jersey.
Federal Drug Law
Under federal law 21 USC 841(a)(1), it is a crime to “manufacture, distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense a controlled substance”. (See PA Title 35 § 780-113(a)(30); NJ – NJSA 2C:35-5). This crime is considered an aggravated felony and subjects a non-US citizen to removal proceedings.
2 Step Test to begin deportation and removal proceeding
This means that if a person is charged and convicted of selling and delivering a controlled substance, it satisfies the “illicit trafficking” of drugs and narcotics under federal law. The federal government has 2 requirements to begin deportation and removal proceedings:
- The offense must be a felony under the law of the convicting sovereign (state or federal government) AND
- The offense must contain a “trafficking element”.
While most individuals believe that a felony offense related to illegal drugs and narcotics could result in deportation, there is case law at the federal level which indicates that a lawful primary resident who is convicted of knowingly or intentionally possessing a controlled substance (i.e. cocaine, marijuana, heroin). (See PA 780-113(a)(16); NJ ), is subject to deportation as well.
Not just felony crimes!
Remember that simple possession in Pennsylvania and New Jersey is considered an ungraded misdemeanor offense (New Jersey – disorderly persons, non-indictable). While there are situations in New Jersey especially where simple possession is an indictable offense, New Jersey usually handles simple possession in Municipal Court.
Other crimes that could cause an immigration problem
In addition to drug crimes and conviction, non-citizens under 8 USC 1227 are at risk for deportation if convicted of crimes of moral turpitude. A crime involving moral turpitude is any behavior that shocks the public conscience as depraved or against the rules of society. This would include any crime involving the intent to cause bodily harm such as the following
- aggravated assault,
Other non-US citizens who are subject to deportation include those who are convicted of a charge of involving high speed of flight from a police officer or resisting arrest, as well as any individual who is found to be a drug addict or abuser (potential non-criminal offense).
If you are charged with a drug crime in Pennsylvania or New Jersey and you are not a US citizen, please contact our law firm for more information. It is critical that you speak to a criminal defense lawyer about your rights under the Pennsylvania and US Constitution as well as those under the New Jersey Constitution.