8 U.S.C. § 1227(a)(2)(B) does provide means for INS to remove an alien by construing a drug related offense as "aggravated felony," or "crime involving moral turpitude(CIMT)," or both, so long as the substance involved is classified as a "controlled substance" as defined in
21 U.S.C § 802. A casual perusal of
21 U.S.C § 802 shows that "wines" or "malted spirits" and other alcoholic substances are NOT classified as "controlled substances" under this section of the law. This means, you are substantially safer. However, please note that Immigration law is highly interpretive in nature and the very liberal wording of the statutes can be suited to one's whims and fancies. While the law explicitly doesn't define what a CIMT is, case-law has interpreted it many ways. By those interpretations, any crime is by itself morally offensive (
malum in se or/as well as
malum prohibitum). Is there a good-crime? (What an oxymoron, it would be!!!) A few times, crimes against the authority of the Government have also been construed as constituting CIMT. In my personal opinion, INS takes into account a number of other related factors, before jumping on denial or removal, including the sentence imposed, the definition of the crime as per State and Federal Statutes, presence or absence of determinative
mens rea(criminal intent), presence/absence of violence as a factor, whether the offense is
malum in se or
malum prohibitum ("inherent evil and despicable in by itself" or "evil as statutorily denounced by law"). This is important, else, the alien will invoke his right to appeal before the Board of Immigration Appeals (BIA) and if that fails then approaches the Circuit Court on appeal. It is here that INS has to clearly prove why an alien has to be removed. By not having a proper case, it will cost enormous pain and aggravation to the Service to pursue tenuous cases.
Enough of irritating gobbledygook, which I had to trudge for the sake of completion. Now, yours is not a "controlled substance," even though you had distributed a contraband substance. You had no
mens rea (criminal intent) to the crime. Yours is not a felony as per your State Law, rather it was a "Class C Misdemeanor," and a misdemeanor can be considered to be a "Felony" for immigration purposes,
if and only if it satisfies
8 U.S.C. § 1101(a)(43). In the aforementioned para, this is what I systematically addressed and eliminated by showing how "beer" and "wine" was not included in
21 U.S.C § 802, which is a precondition to warrant the invocation of
8 U.S.C. § 1227(a)(2)(B) under
8 U.S.C. § 1101(a)(43). I will stand corrected, if any of the criminal/immigration attorney reading this wishes to differ. Your sentence was less than 365 days. Your CIMT is the only offense (I assume it is the case) and you have no other criminal offenses in your record.
Thanks to
t485 for providing a similar-case that was adjudicated, which gives a visible imprimatur to my opinions on this subject.
At least, please do pass the advice to other F1 cases, so that they may be more cautious when they work at STOPs, KWIKs or PATs.
Applying the aforementioned legalese to your case, I am very confident, my friend, that you are safe of all hassles. Your attorney's presumption is very reasonable, I would think. I am also 100% sure that your case will be transferred to a local-office for interview. One of the first communique you will receive, will be
in re to the facts and dispository details of your case. After that, you may get a call for interview. Keep us posted, as others, similar to your own case may heave a sigh of relief. Good luck and God bless.
