How long will my husband be deported to his country after he serves his sentence...

[sappyconifer]

Under 8 USC § 1101(a)(43)(B), a controlled substance offense can be an aggravated felony in either of two ways:
(1) if it is an offense that meets the general definition of
trafficking, such as sale or possession for sale
(2) for immigration purposes, if it is a state non-trafficking offense that is analogous to certain federal felony drug offenses, such as simple possession, cultivation, or some prescription offenses.


Deportability grounds.
Conviction of any offense "relating to" controlled substances, or attempt or conspiracy to commit such an offense, causes deportability under 8 USC §
1227(a)(2)(B)(i). A noncitizen who has been a drug addict or abuser since admission to the United States is deportable under 8 USC § 1227(a)(2)(B)(ii), regardless of whether there is a conviction.

Inadmissibility grounds.
Conviction of any offense "relating to" controlled substances
or attempt or conspiracy to commit such an offense causes inadmissibility under 8 USC § 1182(a)(2)(A)(i)(II). In addition conduct can cause inadmissibility even absent a conviction. A noncitizen who is a "current" drug addict or abuser is inadmissible. 8 USC § 1182(a)(1)(A)(iv).

A noncitizen is inadmissible if immigration authorities have
probative and substantial "reason to believe" that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. 8 USC § 1182(a)(2)(C).

A less frequently used section provides that a noncitizen is inadmissible if she formally admits all of the elements of a controlled substance conviction. 8 USC § 1182(a)(2)(A)(i). The latter does not apply, however, if the charge was brought up in criminal court and resulted in something less than a conviction (e.g., if the person pled guilty to simple
possession but the conviction was effectively eliminated according to Lujan-Armendariz)

[TuppenyBit]

Where did you find the definition for "aggravated felony"? And what is the difference between an ordinary felony and an aggravated one. I'd be interested to know.

I believe that is what I said - if this guy is in for trafficking, there is NO waiver for an immigrant visa. He is not going to be made a USC while in prison(!) - since one major requirement is to be a "good moral character" -- somehow I don't see a drug trafficker falling into that category.
Once deported, his green card status would evaporate, and so even if his USC spouse files another petition, it won't go anywhere even if approved.
What surprises me is that we have not heard from the spouse telling us how her husband is not at fault, that the police and judges involved all lied to put him in jail and that he really is a good person who might have made a 'little mistake.'

[Houston]

What I mean is that the sentence imposed alone does not, by itself, determine when a "crime" is an aggravated felony.
See for instance INA, as amended, when it comes to other crimes..."rape and sexual abuse of minor is an aggravated felony regardless of the sentence ...".
You sure know this, but other people may not.

[sup]

If the controlled substance conviction involved "trafficking" - there's no waiver for an immigrant visa:

Controlled Substance Traffickers
NIV: 212(d)(3)(A)
IV: No waiver

http://foia.state.gov/masterdocs/09fam/0940006X1.pdf

See also:

http://foia.state.gov/masterdocs/09fam/0940023N.pdf

Cheers.

[Houston]

Let me rephrase, the nature of the statute along with the sentence "imposed" (regardless of how much of that sentence is suspended) determine when an offense is an aggravated felony. The sentence alone cannot be used to make such determination.

[Houston]

In my humble opinion, the information given by the OP is to vague to establish the fact that the individual was convicted of an aggravated felony. As we all know, the sentence alone cannot be said to determine this fact, but also the nature of the statute of conviction. Under the categorical analysis, the statute of conviction is controlling, and with the proper sentence, it could raise to the level of an AF.
We don't know the statute of conviction or how many counts he was convicted of. We don't know the reason behind the deportation, maybe it was multiple CIMT's maybe not.
Unless the OP volunteers more information, it is hard to say what's going to really happen and what options, if any, are available to this individual.

[SunDevilUSA]

This criminal low-life deserves to be deported. He is serving 5-10 years for drug offenses.

The fact that he has a wife and children who are American Citizens is irrelevant. I guess that he should have thought about that before making the choice to become a criminal.

Why would anyone try to help him remain in America? America doesn't need to import criminals.

[newbam]

http://uscis.gov/lpbin/lpext.dll/ins...8cfrsec316103i

[Houston]

That'd be a hard pill to swallow since every applicant for citizenship must show "good moral character" during the statutory period.

[TuppenyBit]

I wonder: is there any way this person could acquire U.S. citizenship while in prison, based on his marriage to a U.S. citizen (that could prevent him from being deported)?

[Houston]

It would all come down to the plea, and the actual charges he was convicted of. But since the offense relates to drug charges and the sentence imposed was so long, I would tend to believe he was involved in some sort of trafficking operation. That would be the icing on the cake, because if there's some sort of indication of drug trafficking, the plea agreement and other material would just be irrelevant if there's "reason to believe", that's all the USCIS needs to render him inadmissible for life.
Forget about aggravated felonies, if there's only "reason to believe" this person was involved in drug trafficking, he's inadmissible.

[TuppenyBit]

marmaduk, thank you. I now see 212(h). Is there a definition of "aggravated felony" anywhere?

[marmaduk]

212(h) prevent permanent resident who has committed crime categorized as aggravated felony to be eligible for waiver.

[TuppenyBit]

INA s. 212
A) Conviction of certain crimes.-
(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-
(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

I cannot discover an exception/grounds for waiver for close family members of U.S. Citizens. This would seem to indicate that, if possible, legal advice should be sought long before your husband is deported.

Needless to state, this is not legal advice, and you should consult an attorney.