By: Alexander X. Pe, Esq.
The public perception of marijuana, has experienced a dramatic shift from the days of “Reefer Madness” to general acceptance as a medicine or even a recreational substance less harmful than alcohol.
From cannabis decriminalization, legalization, recreational sales, and medical programs, the majority of US States have greatly reformed marijuana policies and punishments. In Maryland, possession of small amounts of cannabis has been decriminalized. This means that if you get caught with less than 10 grams of flower, you are no longer considered a criminal, and the maximum punishment is equivalent to receiving a parking ticket.
For many cannabis enthusiasts this is a significant improvement.
On the Federal level however, it’s still a totally different story. Cannabis remains an illegal substance. For cannabis consumers and patients, there is some level of protection provided by the states with reformed drug policies, and our legal system is such that the Federal Government cannot compel states to enforce Federal law.
This allows for patients and recreational consumers to carry on with their treatments or usage with minimal risk of being thrown in a Federal prison because the fact is, the Feds are going after the suppliers; those crossing international and state borders, and they simply don’t have the time or resources to go after individual consumers… if you are an American Citizen, that is.
If you are not an American citizen, the picture is much less clear.
Immigrants and non-immigrant visa holders, being subject to the Immigration and Nationality Act (“INA”), a Federal law, are given no protection by progressive states, and marijuana-related offenses can land them in an immigration detention center and ultimately deported.
The fastest way for something this unfortunate to happen is through an arrest record.
Although states cannot be forced to enforce federal law, state law enforcement agencies share fingerprinting data with Immigration and Customs Enforcement (“ICE”) for individuals taken into custody. This automatically triggers the US Citizenship and Immigration Service (“USCIS”) to begin what are called removal proceedings, commonly referred to as deportation.
When ICE is informed of an immigrant’s criminal arrest, they may choose to detain the individual pending their removal, so they won’t have the chance to flee if they are released on bond. Even if ICE decides not to detain the alleged criminal immigrant immediately, the violation of state criminal law, is a violation of the INA, and removal proceedings will be initiated against the immigrant upon conviction.
But what happens when there is no arrest to begin with?
For example in the case of Maryland, where, as previously stated, possession is now considered a civil infraction rather than a criminal offense? The fact is, all offenses both civil and criminal remain on an individual’s record. This is true for speeding tickets and its definitely true for marijuana citations.
Those who get pulled over for speeding, and additionally get cited for marijuana possession because of a visible baggie or device, will be let go by local law enforcement. However, the incident still lingers on their record and may very well come back to haunt them later, sometimes years after the event occurred.
Will these infractions pass under the radar?
Often in these cases, the triggering event alerting USCIS and ICE to the immigrant’s past violations of the INA typically occur when the visa holder either applies for an extension, adjusts status to permanent residency, or applies to become a citizen.
There are many pending cases involving exactly this, where a marijuana offense occurred years ago, and the immigrant now faces the threat of being uprooted from a life built in the U.S. and sent to a place they no longer consider home.
This may seem unfair to many readers out there, and it is.
The stated purpose of this strict immigration policy is to protect the American public and protect communities from the violence and crime caused by serious drug offenders and traffickers. However, the broad application of these rules end up separating families and harshly punishing non-violent individuals whose only crime was smoking a joint.
It's sad, but it's the truth.
If you think you may be in this situation, have a friend or family member who is, the best thing to do is consult with an experienced attorney in both immigration and criminal law.
Individuals should be proactive in seeking legal counsel, not waiting until they receive a notice to appear in immigration court for removal proceedings.
Many times, the risk of deportation for non-violent marijuana possession offenses can be avoided or at least reduced with the help of a lawyer.
Lucky for you all, I happen to know just the right guy! :-)
Alex Pe is an attorney based in Baltimore, Maryland. Former general counsel for Medical Marijuana Advocates Group, he concentrated his practice in marijuana policy, licensing, and compliance. His firm, Hensley Pe Law represents clients on a range of issues, from business matters, civil litigation, immigration and criminal defense.
This article isn’t meant to be construed as legal advice and is for informational purposes only. If you need to seek legal counsel and/or require representation on a certain matter, feel free to contact us for a for a free consultation.