What if she was a foreigner?

Sunday, February 12th, 2012
By: Jonathan MontagJ.D.

Whitney Houston

Superstar Whitney Houston was arrested at Keahole-Kona International Airport for possessing 15.2 grams of marijuana in January 2000. She apparently pled no contest in an arrangement that led ultimately to the expungement of her record.

From the sketchy news reports, it seems that Ms. Houston was sentenced under Hawaii Revised Statute 706-622.5, which states:

Sentencing for first-time drug offenders; expungement. (1) Notwithstanding any penalty or sentencing provision under part IV of chapter 712, a person convicted for the first time for any offense under part IV of chapter 712 involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5, who is nonviolent, as determined by the court after reviewing the:

(a) Criminal history of the defendant;

(b) Factual circumstances of the offense for which the defendant

is being sentenced; and

(c) Other information deemed relevant by the court;

shall be sentenced in accordance with subsection (2); provided that the person does not have a conviction for any violent felony for five years immediately preceding the date of the commission of the offense for which the defendant is being sentenced. (2) A person eligible under subsection (1) shall be sentenced to probation to undergo and complete a drug treatment program. If the person fails to complete the drug treatment program and if no other suitable treatment is amenable to the offender, the person shall be returned to court and subject to sentencing under the applicable section under this part. As a condition of probation under this subsection, the court shall require an assessment as to the treatment needs of the defendant, conducted by a person certified by the department of health to conduct the assessments. The drug treatment program for the defendant shall be based upon the assessment. The court may require the person to contribute to the cost of the drug treatment program.

(3) For the purposes of this section, “drug treatment program” means drug or substance abuse services provided outside a correctional facility, but the services do not require the expenditure of state moneys beyond the limits of available appropriations.

(4) The court, upon written application from a person sentenced under this part, shall issue a court order to expunge the record of arrest for that particular conviction; provided that a person shall be eligible for one time only for expungement under this subsection.

(5) Nothing in this section shall be construed to give rise to a cause of action against the State, state employee, or treatment provider.

Drug crimes lead to deportation. However, the statute, INA § 237(a)(2)(B)(I), exempts “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” Thus, assuming she was not sharing, she would fit under this exemption. Further, because she expunged the conviction, it would have no immigration consequence in the 9th Circuit (where Hawaii is found). Expungements are recognized for a single controlled substance possession (and paraphernalia possession, but not being under the influence) in the Ninth Circuit for convictions before July 14, 2011.  For this reason, too, she would not be deportable based solely on her conviction.

However, Ms. Houston has admitted to drug use. There is also ample evidence of drug abuse. Drug abuse and addiction are deportable offenses. INA § 237(a)(2)(B)(ii). Similarly, admissions to drug use is a ground of inadmissibility, i.e., a basis to decline a person’s entry into the United States. INA § 212(a)(2)(A)(i)(II). Being a drug abuser or an addict is also a ground of inadmissibility. INA § 212(a)(1)(A)(iv).

A person deportable or inadmissible for drug offenses can seek Cancellation of Removal for Certain Permanent Residents, which requires seven years of residence after a lawful admission (before a drug conviction) and five years of permanent residence. Ms. Houston’s super star power would be helpful to her Cancellation case. Her persistent drug abuse would be a significant negative factor. Posted February 12, 2012.


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