Immigration Consequences from Pennsylvania Drug Convictions: Big Changes Coming?

A drug conviction can have serious immigration consequences. A drug trafficking conviction is grounds for deportation. Even a conviction for possessing a small amount of marijuana can disqualify one from obtaining a green card. Anyone charged with a drug offense in Pennsylvania should seek the advice of an experienced “crimmigration” attorney who not only understands the immigration consequences of a criminal conviction, but is also up-to-date on the most recent developments in the law.

Crimmigration law can change in a heartbeat. For example, “drug trafficking” has been classified as an “aggravated felony” in immigration law since 1988. It may surprise you to learn, however, that 34 years later there remains some uncertainty about whether a Pennsylvania conviction for possession of a controlled substance with the intent to deliver (“PWID”) is a drug trafficking offense for immigration purposes.

That exact issue was before the Board of Immigration Appeals (“BIA”) just a few weeks ago.  The case was Matter of German Santos, decided on May 5, 2022. In that case, Mr. German Santos argued that he could not be deported based on his Pennsylvania PWID conviction because the Pennsylvania criminal statute is broader than the corresponding federal statute. It is an all-or-nothing analysis. Courts call it the “categorical approach.” If there is any way to violate Pennsylvania’s PWID statute without also committing a federal drug trafficking offense, then no PA PWID conviction is a drug trafficking offense for immigration purposes. German Santos argued that there are drugs that are controlled in Pennsylvania that are not controlled under federal law. Therefore, his conviction cannot be a drug trafficking offense for immigration purposes. The court should not be permitted to look further into the facts of his case, including the substance that he was accused of possessing.  

Not surprisingly, the Department of Homeland Security (“DHS”) disagreed. According to DHS, the identity of the drug is an element under the PA PWID statute. Therefore, a single section of the statute defines over one hundred separate crimes, one for each substance that is controlled. As long as the substance is also on the federal controlled substances schedule, there is a categorical match and the PA PWID conviction is a drug trafficking conviction for immigration purposes.

German Santos cited a recent decision by the Superior Court of Pennsylvania in the case of Commonwealth v. Beatty in which the court ruled that the identity of the drug is not an element of PWID. The BIA generally defers to state law in deciding what is or is not an element of a crime. But in this case the BIA disagreed with the Pennsylvania Court. Applying federal criminal law principles, the BIA concluded that the identity of the drug must be an element because there are different penalties depending on which drug the defendant possessed. As a result, the BIA ruled in favor of the government.

So, at the end of the day, Matter of German Santos did not send shock waves through immigration law. Most Pennsylvania felony drug convictions will continue to be classified as aggravated felonies and grounds for deportation. But is this the end of the story? I, for one, am not convinced by the BIA’s reasoning and am anxious to see what the Third Circuit says about this. Could big changes be coming? Stay tuned.