- The information in this blog is not a substitute for seeking the legal opinion and/or legal representation of an experienced immigration lawyer who is fully aware of lawful permanent resident’s background and personal circumstances. Immigration law is prone to frequent changes in the law that can affect the validity of the information provided herein. For any immigration law issue I recommend attorney Sufen Hilf of the law firm Hilf & Hilf, PLC.
With the increasing legalization by States for marijuana there is a false perception that Federal law is also more tolerant. The federal penalty for possession of marijuana (as a first time marijuana conviction only) is a misdemeanor with up to 1 year of incarceration and a maximum fine of $1000. The federal penalty for selling or distributing less than 50 kilograms of marijuana is a felony that carries up to 5 years of incarceration and a maximum fine of $250,000. At the time of this blog marijuana is classified under Federal law as a schedule 1 substance.
Immigration law is similarly in opposition to marijuana use, possession, distribution, sales, or cultivation. Moreover, any sort of a diversionary sentence in State court in which the alien pled guilty before a Judge is still viewed as as a conviction. It does not matter if the State considers the conviction as expunged, sealed, or not entered into a public record.
Deportability/Removability. If immigration is aware of a marijuana conviction by a lawful permanent resident, he or she is both deportable/removable and inadmissible pursuant to INA section 237(a)(2)(B). For a conviction for simple possession of marijuana, or for selling/distributing marijuana, a lawful permanent resident is subject to mandatory detention under INA section 236(c)(1)(B). However, if the lawful permanent resident was convicted of a single offense of possession of 30 grams or less of marijuana for personal use he or she qualifies for an exception to deport ability/removability. If the matter was litigated, the government would have the burden of establishing that the lawful permanent resident’s conviction does not fall within the 30 grams of marijuana exception.
Marijuana cultivation, distribution, and/or sales are viewed to be aggravated felonies for Immigration purposes. A conviction for an aggravated felony bars an Immigration Judge from granting most forms of discretionary relief to prevent deportation. Although simple possession of marijuana as a first time offender is a misdemeanor under Federal law (and those not an aggravated felony), it is still a ground for deportability under INA section 237(a)(2)(B)(i) (unless the 30 gram or less exception applies).
Inadmissibility. Once the lawful permanent resident departs the United States he or she will not be admitted or readmitted to the United States under INA section 212(a)(2)(A)(i)(II). Persons convicted of marijuana offenses are generally not eligible to obtain a waiver of inadmissibility. The 30 grams or less exception to deport ability/removability does not apply to inadmissibility. It is important to note that a person who is not a citizen can be denied admission to the United States on the basis of a “reason to believe” that he or she has been involved in illicit trafficking of marijuana.
Naturalization. A lawful permanent resident who has been convicted of a marijuana offense during the required period of good moral character is not eligible to become naturalized. There is an exception under 8 CFR section 316.10(b)(2)(iii) for one offense of personal possession of marijuana involving 30 grams or less. Applying for naturalization with a prior drug conviction could lead a lawful permanent resident to deportation/removal proceedings.
Potential relief? For simple possession of marijuana the reliefs may include the following: the less than 30 grams exception to removability; cancellation of removal; waiver of inadmissibility under INA section 212(h). For marijuana cultivation, sales, and/or distribution the forms of relief are rather stark.
For any marijuana related offense in which the person charged is not a United States citizen, it is advisable to immediately retain an experienced criminal lawyer and an experienced immigration lawyer. For both criminal and immigration related marijuana issues, again, my recommendation is to contact Hilf & Hilf, PLC. Hilf & Hilf, PLC is located at 1775 W. Big Beaver Road in the city of Troy, Michigan 48084. Their telephone number is (248)792-2590.