Controlled substance offenses
Almost any conviction relating to a federally controlled substance is a ground of removal, and for most people it cannot be waived. The single exception is one offense of possessing 30 grams or less of marijuana for personal use, and even that exception is narrower for a person seeking admission than for a person already admitted. A drug plea is the one category where the difference between a conviction and a dismissal, and between a state offense and a federal felony, changes everything that follows.
Current as of October 2026. We re-check this page regularly and after any rule change.
Three questions decide what a drug plea does. Is the substance on the federal schedules? Is the disposition a conviction? And does the offense fall inside the single small-marijuana exception, which is the only opening the statute leaves? A fourth question, whether the offense is also illicit trafficking, decides whether it is an aggravated felony on top of a drug ground. This page takes them in order, then covers the grounds that need no conviction at all and what a drug conviction closes. The map of every criminal ground is on the crimes and removal page.
The two grounds
For a person who was admitted, INA 237(a)(2)(B)(i) makes deportable anyone convicted of a violation of, or a conspiracy or attempt to violate, any law or regulation relating to a controlled substance as defined in 21 U.S.C. 802, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. There is no five-year window, no sentence threshold and no requirement that the offense be a felony. A misdemeanor possession plea fits. A conditional discharge that began with a guilty plea fits.
For a person seeking admission, adjusting status, or returning from travel as a permanent resident, INA 212(a)(2)(A)(i)(II) reaches conviction of, or admission of, a violation of any law relating to a controlled substance as defined in 21 U.S.C. 802. There is no marijuana exception on this list. The 30-gram exception appears in the deportability ground and in the 212(h) waiver, and nowhere in the inadmissibility ground itself. A single small-marijuana possession still makes an applicant inadmissible; what the statute gives that person is a waiver to apply for.
The exception is one offense, for personal use, 30 grams or less, marijuana
Every word carries weight. Two marijuana possession convictions on separate occasions are two offenses. Possession with intent to sell is not possession for one's own use. Thirty-one grams is not thirty. A different substance is not marijuana. The Board has treated two convictions arising from the same incident, possession and paraphernalia for the same small amount of marijuana, as a single offense. Whether a paraphernalia conviction tied to 30 grams or less for personal use falls within the exception is a question to treat as open. We would want to read the Board decision on it against your record before telling you how it applies. Ask us.
INA 237(a)(2)(B)(i); INA 212(a)(2)(A)(i)(II); Matter of Davey, 26 I&N Dec. 37 (BIA 2012); Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014) (the 30-gram exception is read circumstance-specifically).
The substance has to be on the federal schedules
Both grounds refer to a controlled substance "as defined in" 21 U.S.C. 802, which means a drug or other substance in schedules I through V of 21 U.S.C. 812. A state conviction is a controlled-substance offense only if the substance is on those schedules. In Mellouli v. Lynch, 575 U.S. 798 (2015), the Supreme Court held that a state paraphernalia conviction which did not tie the paraphernalia to a federally controlled substance could not support the charge, because the state's list of controlled substances was broader than the federal one. The same logic applies to any state drug statute whose schedule includes substances the federal schedule does not.
Marijuana is on the federal schedules. It remains a controlled substance under federal law, and state legalization or decriminalization does not change the immigration analysis. We re-check the federal scheduling status of marijuana as part of our regular review of this page; a move to a different schedule would still leave it a controlled substance for the purposes of the immigration statute.
What this means at the plea: a count that does not identify the substance, or that identifies a substance not on the federal schedules, is a different count from one that names a federally scheduled drug. Whether a particular state statute is divisible by substance, so that the record of conviction can be consulted for which one was involved, is decided under the categorical approach, statute by statute. That answer comes from reading your statute, so bring it to us.
Trafficking: when a drug offense is also an aggravated felony
INA 101(a)(43)(B) makes illicit trafficking in a controlled substance, including a drug trafficking crime under 18 U.S.C. 924(c), an aggravated felony. Three Supreme Court decisions draw the line between a drug ground and a trafficking aggravated felony.
- Under Lopez v. Gonzales, 549 U.S. 47 (2006), a state drug offense is illicit trafficking only if it would be punishable as a felony under the federal Controlled Substances Act. The state's label does not matter. State-felony simple possession is not an aggravated felony, because federal simple possession under 21 U.S.C. 844(a) is a misdemeanor for a first offense.
- Under Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), a second simple-possession conviction is not an aggravated felony unless the recidivist enhancement that would make it a federal felony was actually charged and proved in the criminal case.
- Under Moncrieffe v. Holder, 569 U.S. 184 (2013), a state marijuana-distribution conviction is not illicit trafficking where the statute's minimum conduct is sharing a small amount for no remuneration, because that conduct is a federal misdemeanor.
Distribution is also a crime involving moral turpitude under Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997), so a sale or distribution plea can carry three labels at once: the drug ground, the moral-turpitude ground and, if it meets Lopez, the aggravated felony. The aggravated felony page has the full list of what that third label closes.
Two grounds that need no conviction
INA 212(a)(2)(C) makes inadmissible any person the government has reason to believe is or has been an illicit trafficker in a controlled substance, or has knowingly assisted one. No conviction is required. No admission is required. A dismissed sale charge, a plea to a lesser count, or the contents of a police report can be the basis. Certain family members who knowingly benefited from the trafficking are covered too. There is no 212(h) waiver for this ground.
INA 237(a)(2)(B)(ii) makes deportable a person who is, or at any time after admission has been, a drug abuser or addict. No conviction is required. Statements made in a treatment program, a presentence report or a plea colloquy about drug use can be evidence. This is one reason what you say on the record in a drug case matters beyond the count you plead to.
Convictions, dismissals and the federal first-offender statute
The drug ground requires a conviction, and the immigration definition of a conviction in INA 101(a)(48)(A) reaches a guilty plea followed by any penalty or restraint on liberty, even where the court withheld judgment and later dismissed the case. Most state drug-diversion programs work that way: plead, complete the program, dismissed. That is a conviction the day of the plea, and under Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999), the later dismissal is rehabilitative and does not eliminate it.
The federal statute is different. Under 18 U.S.C. 3607, a person found guilty of simple possession under 21 U.S.C. 844 with no prior drug conviction may be placed on probation without entry of judgment, and on successful completion the proceeding is dismissed "without entering a judgment of conviction" and "shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime." A state analog does not get that protection; under Roldan-Santoyo the state disposition is a conviction and the expungement is rehabilitative. A program entered with no plea and no finding of guilt, such as New Jersey's conditional discharge where none is entered, is not a conviction because nothing on the 101(a)(48)(A) list happened. The conviction page and the deferred adjudication page cover the dispositions in detail.
The safer drug disposition is the one with no plea and no finding of guilt. Ask what the court will require you to say before the program begins, not what happens at the end of it.
What a drug conviction closes
| Consequence | Effect | Authority |
|---|---|---|
| Mandatory detention | Triggered for anyone deportable under 237(a)(2)(B) or inadmissible under 212(a)(2) | INA 236(c)(1)(A), (B) |
| The 212(h) waiver | Unavailable except for a single offense of simple possession of 30 grams or less of marijuana | INA 212(h)(1) |
| Adjustment of status | Requires admissibility; with the drug ground, only the single small-marijuana offense can be waived | INA 245(a)(2); INA 212(h) |
| Cancellation for non-permanent residents | Barred by any conviction of an offense under 212(a)(2) or 237(a)(2) | INA 240A(b)(1)(C) |
| Cancellation for permanent residents | Barred only if the offense is an aggravated felony; but the offense stops the seven-year clock at commission if it renders you inadmissible under 212(a)(2) | INA 240A(a), 240A(d)(1); Barton v. Barr, 590 U.S. 222 (2020) |
| Good moral character | Conditional bar during the statutory period, except a single offense of simple possession of 30 grams or less of marijuana | INA 101(f)(3); 8 C.F.R. 316.10(b)(2)(iii) |
| TPS | Inadmissibility under 212(a)(2) cannot be waived for TPS, other than the 30-gram marijuana offense | INA 244(c)(2)(A)(iii) |
| DACA | Drug distribution or trafficking is a misdemeanor listed in the regulation (8 C.F.R. 236.22(b)(6)(i); the regulation itself does not use the phrase "significant misdemeanor"); as of January 2025 USCIS accepts but does not process initial requests after the Fifth Circuit's decision in Texas v. United States, and continues to process renewals | 8 C.F.R. 236.22(b)(6) |
| Returning permanent residents | A resident who has committed an offense identified in 212(a)(2) is treated as seeking admission on return | INA 101(a)(13)(C)(v) |
| Asylum and withholding | An illicit-trafficking aggravated felony is per se a particularly serious crime for asylum; for withholding, per se only with an aggregate sentence of five years or more | INA 208(b)(2)(B)(i); INA 241(b)(3)(B) |
The line to notice is the waiver line. For a crime involving moral turpitude, the 212(h) waiver is usually available to apply for. For a drug conviction, other than the one small-marijuana offense, it is not. That is why a drug plea that would be a minor matter for a citizen can be the end of an adjustment application, and why a permanent resident with a drug conviction who travels can be treated as an applicant for admission at the airport with no waiver to apply for.
What this means at the plea
The negotiating points follow from the rules.
No plea, no finding of guilt
A disposition with no plea and no finding of guilt, where the court offers one.
A count that does not name the substance
A count that does not name a federally controlled substance, where the statute is divisible and the record can be kept silent on the substance.
One marijuana possession, 30 grams or less
A single possession count for personal use of marijuana, with the amount at or under 30 grams in the record, rather than a second count or a paraphernalia count that stands alone.
Possession, not sale
A possession count rather than a sale or distribution count, because possession is not an aggravated felony under Lopez and distribution can be.
Under 180 days of confinement
A sentence that does not push the offense into the 180-day confinement bar to good moral character.
Nothing on the record about drug use
INA 237(a)(2)(B)(ii) reaches a drug abuser or addict with no conviction, and statements in a plea colloquy, a treatment program or a presentence report can be the evidence.
None of these removes the risk from a drug plea; each makes a specific consequence less likely. The plea strategy pages cover how they are negotiated.
Read next: aggravated felonies, what counts as a conviction, waivers after a conviction, or mandatory detention.
Common questions
Marijuana is legal in my state. Does a marijuana conviction still count?
Yes. The immigration statute refers to a controlled substance as defined in 21 U.S.C. 802, which means the federal schedules, and marijuana remains on Schedule I of the federal Controlled Substances Act. State legalization or decriminalization does not change the immigration analysis. The only relief written into the statute is the exception for a single offense of possessing 30 grams or less for personal use, and that exception applies to the deportability ground and to the 212(h) waiver, not to the inadmissibility ground itself.
Is drug possession an aggravated felony?
Usually not. Under Lopez v. Gonzales, a state drug offense is an illicit-trafficking aggravated felony only if it would be punishable as a felony under the federal Controlled Substances Act, and federal simple possession is a misdemeanor for a first offense. Under Carachuri-Rosendo v. Holder, a second possession conviction is not an aggravated felony unless the recidivist enhancement was actually charged and proved in the criminal case. Possession is still a controlled-substance ground of removal, which makes detention mandatory and bars most relief on its own.
What about a paraphernalia conviction?
It depends on what the record ties the paraphernalia to. Under Mellouli v. Lynch, a paraphernalia conviction that does not connect the paraphernalia to a substance on the federal schedules does not support the controlled-substance charge. Where the record does connect it to 30 grams or less of marijuana for personal use, whether the conviction falls within the marijuana exception is a question we treat as open. Ask us. Where it connects it to any other federally controlled substance, it is a ground of removal like any other drug conviction.
I completed a drug diversion program and the case was dismissed. Am I in the clear?
Only if no plea or finding of guilt was ever entered, or if the dismissal was under the federal first-offender statute. Under 18 U.S.C. 3607, a federal first-offender disposition for simple possession is not a conviction. A state program that requires a guilty plea first, then dismisses the case on completion, produces a conviction under INA 101(a)(48)(A), and under Matter of Roldan-Santoyo the later dismissal is rehabilitative and does not undo it. The question is what you were required to say in court before the program began.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.