Immigration law in the age of marijuana decriminalization
By Jordan Cunnings
In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington.
While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his administration’s consistently harsh enforcement efforts in the area of marijuana use and immigration. While marijuana use is legal in one form or another in twenty states and the District of Columbia, and banks now have the green light from the Treasury Department to finance legally operating marijuana dispensaries, noncitizens remain at risk for incredibly harsh and disproportionate immigration consequences when using small amounts of marijuana. Low-level marijuana charges often funnel noncitizens into the immigration law system, prevent otherwise-eligible noncitizens from obtaining lawful immigration status, and subject lawfully present noncitizens to deportation. Worse yet, marijuana laws are disproportionately enforced in poor and minority communities—as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests may disproportionately impact the people of color who make up the bulk of today’s immigrant groups.
Though recent prosecutorial discretion memos by the former head of the Immigration and Customs Enforcement (ICE) agency John Morton purport to refocus enforcement priorities away from individuals who have only minor criminal histories, immigration law enforcement statistics from the past two years show that this policy is not being followed. Marijuana laws are disproportionately enforced in poor and minority communities– as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests often serve as entry point into the criminal justice system and then the deportation system. A Transactional Records Access Clearinghouse (TRAC) review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of noncitizens are funneled into ICE custody after being charged with low-level marijuana possession offenses.
Once in removal proceedings, noncitizens with a history of marijuana use face significant barriers to fighting removal. A single marijuana possession offense, no matter how minor, makes a noncitizen inadmissible, INA § 212(a)(2)(A)(ii), which can often close off eligibility for types of relief from deportation like non-LPR cancellation under INA § 240A(b) or adjustment of status under § 245. A noncitizen otherwise eligible to receive an immigrant visa would be rendered presumptively ineligible for that visa with one marijuana offense on her record, no matter how long ago the offense occurred and how little marijuana was involved. A limited waiver is available under INA § 212(h), but only if the applicant can prove that the offense involved “a single offense of simple possession of thirty grams or less of marijuana,” and, unless the offense occurred fifteen years before the application for admission, that denial of the waiver would cause extreme hardship to a qualifying relative. If criminal records are incomplete or missing, it can be exceptionally difficult for waiver applicants to meet their burden of proving that the offense involved less than 30 grams of marijuana, and extreme hardship is a very high standard to meet, meaning that many of these waivers are denied. Though precise data on § 212(h) waiver approval and denial rates are unavailable, a rough gauge of the high threshold to obtaining one comes from State Department reports on the success of challenges to findings of inadmissibility on controlled substances offense bases. For example, in Fiscal Year 2012, less than 15 percent of individuals found ineligible by consulates for immigrant visas on controlled substance grounds were able to overcome that inadmissibility via a waiver or by proving that the ground did not apply.
The controlled substance deportability ground, INA § 237(a)(2)(B)(i), also operates harshly against noncitizens convicted of marijuana offenses. Though the INA contains a personal use exception at § 237(a)(2)(B)(i), which, like the 212(h) waiver, excuses one offense involving simple possession of thirty grams or less of marijuana, this exception often operates narrowly. As explored previously on the crImmigration blog, the BIA has interpreted offense to mean conviction, meaning that two convictions from the same instance of using marijuana (like drug possession and possession of drug paraphernalia, for instance) make an individual ineligible for the exception. Individuals with two or more marijuana offenses also can be subject to removal as aggravated felons, if the second offense is charged as a recidivist offense. Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 862 (BIA 2012), distinguishing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).
Additionally, in places where marijuana use has not been legalized but penalties for the use of small amounts have been significantly lowered, noncitizens very often face low-level marijuana charges without the assistance of court-appointed counsel who would be required to advise them of the immigration consequences of their charges. Because criminal defendants do not have a constitutional right to counsel if their charges could not result in actual imprisonment,1 states facing budget crises have an incentive to lower penalties for low-level drug offenses and thus save money in their indigent defense budgets. When then-governor of California Arnold Schwarzenegger signed Senate Bill 1449, for example, reducing penalties for possessing less than 28.5 grams of marijuana from a misdemeanor to an infraction, he justified the bill in part because the state would save money by not having to provide defense attorneys for these cases. Noncitizens facing these charges without counsel may not realize that admitting guilt of a marijuana violation by paying a small fine or accepting probation can lead to near-automatic removal from the country.
While these inadmissibility and deportability grounds have inflicted harsh and disproportionate consequences on noncitizens for decades, the injustice of these provisions is even more obvious against the backdrop of national moves towards decriminalization and President Obama’s recent comments. At least theoretically, inadmissibility and deportability grounds are meant to correspond with society’s views on what constitutes appropriate behavior for its members. Since a decisive majority of Americans now favor marijuana legalization, marijuana use should no longer be grounds for the removal of noncitizens from the United States.
Legalization advocates are hopeful that substantive changes to federal drug laws could be forthcoming. But in the meantime, there is no excuse for the continued deportation or exclusion of immigrants for marijuana use. In the criminal justice realm, judges should ensure that counsel is appointed to any noncitizen facing drug charges, even charges that don’t carry potential jail time, so a proper advisal on immigration consequences can be provided. And if President Obama truly cares about disproportionate and biased punishment rates for marijuana use, he should turn his eye to the immigration realm. An expansion of prosecutorial discretion to meaningfully protect individuals with minor marijuana convictions from deportation would be at least a first step towards aligning his actions with his words.
Jordan Cunnings is currently a third-year law student at UCLA School of Law. She served as Chief Articles Editor of Volume 61 of the UCLA Law Review, and is pursuing specializations in Critical Race Studies and the David J. Epstein Program in Public Interest Law and Policy.
1. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 369 (1979).
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