Immigrants Find Hurdles, Not Protection In Pot Legalization

John Lennon and Leon Wildes in front of Thurgood Marshall United States Courthouse in New York City. Between 1972 and 1976, Lennon and his wife, Yoko Ono, fought their deportation in a politically tinged case that reached the Second Circuit. (Courtesy of Wildes & Weinberg PC)

In 1972, a British man hired Leon Wildes of Wildes & Weinberg PC, a New York-based boutique firm, to represent him in a deportation case that centered on a cannabis offense. That man was John Lennon.

U.S. immigration authorities had denied Lennon a green card because of a conviction for cannabis possession that followed him from the United Kingdom, and had given him 60 days to leave the country.

Wildes, who had no idea who Lennon was when he met him, ended up winning the case after a yearslong legal battle that uncovered the selective prosecution of the Beatles musician and his wife, Yoko Ono, whom the Nixon administration considered politically dangerous because they opposed the war in Vietnam and were influential with voters.

But the case also gave worldwide visibility to an immigration policy that gave enormous weight to marijuana offenses — and still does.

“My dad brought this sore subject out in the Lennon case,” Michael Wildes, a managing partner at Wildes & Weinberg, which has many celebrity clients, told Law360. “To this day, we still get rock stars who have drug convictions calling our office on immigration consequences.”

Laws have changed since the Lennon case, Wildes said, but drug policy has remained unfavorable to immigrants. And in most cases, it is ordinary people, not rock stars, who bear the brunt of it. According to a report by Drug Policy Alliance, U.S. Immigration and Customs Enforcement made over 67,000 arrests for nontraffic drug offenses in fiscal year 2019. After illegal entry, drug offenses were the most common cause of deportation, the report says.

Recreational cannabis use for adults is now legal in 19 states, and with legalization comes a host of social equity initiatives that seek to reverse some of the effects decades of marijuana prohibition have had, particularly on communities of color.

In some states, people can now carry up to 3 ounces of marijuana, grow it at home, open cannabis businesses and see old convictions expunged. Immigrants across the nation, however, are being left out.

As states create new economies out of legal cannabis, marijuana’s status as federally illegal effectively cuts out immigrants from a new burgeoning industry.

“This dichotomy in the law is not just puritanical, but dilutes America’s ability to raise tax money for communities and meet up with a lawful demand,” said Wildes, who has many clients who have been denied visas because of their investments in a legal marijuana business. “This is the one arena in our field that begs real intellectual and insightful progress.”

Wildes, who wears two hats as an immigration attorney and mayor of Englewood, New Jersey, a town just across the Hudson from the Big Apple, sees a conundrum: The citizens of his town are free to smoke marijuana in public, but his noncitizen clients face deportation for even mentioning to an officer they used it in a distant past.

Simple marijuana possession continues to be the number one drug offense that leads to deportation.

Maritza Perez

Drug Policy Alliance

Because the federal government’s seemingly obsessed with marijuana, and noncitizens are under the jurisdiction of the federal government, immigrants can’t avail themselves of the benefits of legalization. Quite the opposite: Any type of conduct involving marijuana — even one that is legal under state law — can threaten immigrants’ future in the United States, legal experts say.

Maritza Perez, an attorney with the Drug Policy Alliance, said anyone who is not a citizen and consumes marijuana could face mandatory detention, deportation, denial of citizenship or adjustment of status.

“There are really intense consequences for immigrants who partake in marijuana activities,” Perez said. “What we’ve seen during the last decade, at least, is that simple marijuana possession continues to be the number one drug offense that leads to deportation.”

Marijuana can threaten the future of an immigrant in the United States in two ways. One is that people with marijuana convictions can be deported or denied entry into the country.

The second is that, even without a conviction or arrest, a person can be denied entry into the country if he or she formally admits to conduct involving marijuana.

A ‘Good Moral Character’ Issue

Any person who is not a citizen is required to establish “good moral character” in order to obtain immigration benefits, such as a green card or citizenship. An immigrant who admits to having smoked marijuana fails to meet that test under the provisions of the Immigration and Nationality Act.

“In an instance like that, that person would be denied whatever immigration status they were seeking,” Perez said.

But in a nation where marijuana legalization is gaining ground in state after state, immigrants can get expelled for even just mentioning to an immigration officer that they have consumed marijuana in the past.

A Pew Research survey published in April found that 60% of adults in the United States across racial and political party lines said recreational marijuana should be legal. Support for legalization reaches 91% when including people who think marijuana should be legal only for medical purposes.

Yet the federal government continues to classify marijuana as a Schedule I controlled substance alongside heroin, LSD, ecstasy and other drugs considered highly addictive and that have “no currently accepted medical use.” In comparison, cocaine, methamphetamine, oxycodone and fentanyl are listed as Schedule II and considered less dangerous.

“It’s crazy that our government has this really backwards view on marijuana,” Perez said. “The states get it, and the public gets it. Only the government upholds this stigma.”

Asked under oath by a U.S. Citizenship and Immigration Services officer about even remote instances of marijuana use, an applicant for a green card has no good choices: Admitting use will be used as a reason to deny residency. Lying to the officer can pose even more serious risks. Declining to answer the question will likely result in a denial of residency for failing to collaborate with the officer.

Often, immigrants are questioned about marijuana at the border. Wildes said many of his clients who admitted having used marijuana were told by officers they were inadmissible to the United States.

“We have many clients that end up admitting, when they’re tired and weak from travel, and then finding themselves turned around at an airport because they opened their mouth,” Wildes said. “If they tell the truth they have a problem, if they lie they have a problem.”

Immigrants cannot establish good moral character if they admit to having consumed marijuana during the probationary period, which usually goes back five years from the moment they apply for a green card or visa. Immigration authorities, however, can choose to dig deeper into a person’s past.

USCIS clarified the policy in a memorandum issued in April 2019.

“Violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law,” the memo says.

Immigration routinely looks [at], screens your social media. We really encourage people to think about the risks of how public they are about their marijuana use.

Marie Mark

Immigrant Defense Project

The law allows for an exception: Admitting to a single offense of simple possession of 30 grams or less of marijuana doesn’t bar an applicant from establishing good moral character. Wildes said even that type of admission is risky.

“It would be foolhearted to make any kind of admission like that,” he said.

Marie Mark, a supervising attorney with the Immigrant Defense Project, said her organization regularly informs noncitizens living in states where marijuana is legal that any activity linked to pot could be used by immigration authorities to deny them benefits or to initiate deportation proceedings.

“Immigration routinely looks [at], screens your social media,” she said. “We really encourage people to think about the risks of how public they are about their marijuana use.”

Expungement of Records Can Raise Problems

The clearing of criminal records related to marijuana activities is a major component of the legalization bills enacted around the country in recent months. Laws passed in New Jersey, New Mexico, New York, Virginia and Connecticut all include provisions that allow for the expungement of old marijuana-related convictions. In some states, the expungement is automatic. In others, it requires the filing of a petition. Others yet use a hybrid process.

In a practical sense, a record marked as “expunged” is made legally null. Law enforcement cannot access it. People with expunged records do not have to mention their past convictions when applying for a job or housing, and in other circumstances.

However, some laws allow for people with expunged records to request their files be physically destroyed. In New York, for instance, the recently passed Marijuana Regulation and Taxation Act allows for such a process.

It’s actually very dangerous in a lot of circumstances to request that [expunged records] be physically destroyed.

Emma Goodman

The Legal Aid Society of NYC

Emma Goodman, a staff attorney at The Legal Aid Society of NYC who has been involved in the drafting of the law, warned that shredding the file of an expunged conviction presents serious risks while providing no additional legal benefit.

“I think that is a bad idea. It’s actually very dangerous in a lot of circumstances to request that they be physically destroyed,” Goodman said.

The physical presence of an expunged record is in the only proof that a conviction was really expunged. That proof is crucial in immigration cases.

The U.S. Department of Homeland Security can view the arrest history of individuals, but often don’t have access to dispositions. Absent a record saying a marijuana conviction has been expunged, federal agents can assume an individual lacks proof that the case was terminated favorably, with potentially dire consequences.

“If you don’t have a record of what happened with the case, what they will see is an open arrest for a marijuana charge that is still illegal under federal law,” Goodman said.

Perez said expungement provisions that some states have passed or considered have the potential to harm immigrants.

“We have to be very careful about how we write our expungement laws around marijuana at the state level,” Perez said. “Some states have been pushing for full destruction of whole criminal records. But things like that would not be helpful to a noncitizen.”

Achieving a policy on marijuana that takes into account the specific risks immigrants face requires the substantial involvement of immigration attorneys, Perez said.

Mark said expungement provisions in the New York legalization bill, often referred to as the MRTA, are “groundbreaking” in reversing some effects of cannabis prohibition, but warned that they don’t give enough protection to immigrants who may face deportation for marijuana convictions.

“They don’t have the impact people need in immigration proceedings,” she said. “Immigration law requires individuals to have courts individually examine their conviction and overturn it under specified grounds.”

That process, called vacature, is triggered by filing a motion under Criminal Procedure Law, Section 440. A provision in the MRTA allows for individuals to initiate the process and can be a savior for noncitizens with past marijuana offenses, said Christine Gonzalez, an immigration attorney with Brooklyn Defender Services.

“That was [added to the law] to help ensure that noncitizens can be protected from immigration consequences,” Gonzalez said.

But physically destroying an expunged record would make it harder for a court to vacate that conviction under the 440 motion process, and harder for an individual to prove that a criminal case was resolved favorably, Mark said.

“We have been counseling people not to ask for the destruction of their record,” she said.

The Marijuana Opportunity Reinvestment and Expungement Act

Legalization advocates have been working closely with their justice reform counterparts to come up with federal legislation that would end marijuana prohibition in the country. Until Congress takes that step, immigrants will never be fully safe in consuming cannabis, or getting involved in its business, attorneys say.

“There are things states can do to try to protect noncitizens,” Perez said, “But the truth is until we remove marijuana from the list of controlled substances — that is the only way we can ensure that noncitizens are protected.”

Wildes said federal marijuana legalization is inevitable. As with other reforms spearheaded by states and local governments in the past — he mentioned the fight for marriage equality as an example — the U.S. government will have to catch up with a new political reality and the shift in public opinion.

“As we change state by state, the federal government will eventually get there,” he said.

But the push for legalization won’t likely come from the Biden administration, Perez said. President Joe Biden, who in his long career as a senator had supported the war on drugs, has expressed opposition to legalizing marijuana while arguing for simple decriminalization and rescheduling of cannabis.

Democrats in Congress have proposed legislation seeking to capitalize on the popularity that cannabis legalization has garnered across the nation.

The Marijuana Opportunity Reinvestment and Expungement Act, or MORE Act, introduced in the House of Representatives by Rep. Jerry Nadler, D-N.Y., in July 2019 would legalize marijuana nationally and include social equity provisions similar to those passed in New York, New Jersey and Connecticut.

The bill passed the House in December with a 228-164 vote, with five Republicans voting in favor. A similar bill was simultaneously introduced in the Senate by then-Sen. Kamala Harris, D-Calif., but died in that chamber while it was still under Republican control.

Senate Majority Leader Chuck Schumer, D-N.Y., who has supported the MORE Act in the past, said in a statement in April that he is actively working on a legalization bill of his own.

“I believe the time has come to end the federal prohibition on marijuana in this country — and I am working with Senators [Cory] Booker and [Ron] Wyden on legislation to do just that,” Schumer said at the time. A spokesman for Schumer declined to comment on that bill.

Perez said the MORE Act is the best bet for noncitizens because it has specific protections.

“The MORE Act would remove marijuana from the list of controlled substances. That is huge because that would remove federal consequences for marijuana activity,” Perez said.

A provision in the text of the proposed bill would specifically bar the government from using marijuana use as a pretext for denying immigration benefits to noncitizens, she added.

–Editing by Emily Kokoll and Bruce Goldman.