If you are facing a charge of drug possession in Texas and you are not a citizen of the United States, you should be aware of the laws regarding deportation for drug convictions.
What is the law on deportation for drug convictions?
Under federal law, an alien convicted of a drug offense, other than possession of a relatively small amount of marijuana, is deportable. See 8 U.S.C.A. § 1227(a)(2)(B)(i). Placement on deferred adjudication in Texas is considered a conviction for purposes of federal immigration law. See Moosa v. I.N.S., 171 F.3d 994, 1005–06 (5th Cir. 1999); Guerrero, 400 S.W.3d at 588 & n.52; see also 8 U.S.C.A. § 1101(a)(48)(A).
So if you are charged with any offense besides small amounts of marijuana, you are at risk of being deported if you are not a citizen. Deferred adjudication won’t help either.
Deferred adjudication is where you plead guilty, but the court does not find you guilty. That means you aren’t convicted of the offense. However, federal law controls on immigration matters. And the federal government, that is the United States government, not the State of Texas, controls what counts as a conviction. And the federal government considers deferred the same as a conviction. So before you take any plea bargain for deferred on a possession case, you should be aware that the feds will use that to deport you.
So what to do if you are a non-citizen and charged with possession?
First, let your defense lawyer know you are not a citizen. They should ask, and hopefully, it’s part of their intake process, but if not, just tell them. Ask your defense lawyer if the DA has a pre-trial diversion process. Pre-trial diversion is a way to get your case dismissed without pleading guilty. Ask your defense lawyer if they have experience representing people who are not citizens, and what they have done in the past on these cases. You want a lawyer who has done this before. Speaking of hiring a lawyer, don’t wait so long to hire one, hire a defense lawyer as soon as you are arrested. The earlier you hire a defense lawyer the more options they have to help you.
Finally, you should also hire an immigration lawyer to advise you on your options. Most criminal lawyers will know a little about immigration law, but you really need the advice of someone whose primary practice is immigration.