Immigration Consequences of Marijuana Convictions

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Despite the majority of states legalizing marijuana in some form, the federal government is slow to catch up. In fact, the U.S. government wants to bring back the war on drugs, including marijuana, which they consider very dangerous. This outdated and restrictive point of view is reflected in federal criminal and immigration laws, which severely punish possession of marijuana.

Drug offenses are generally treated very harshly under federal immigration laws. Marijuana is no exception. Consequences of drug offenses can include deportation/removal, loss of permanent residency, inability to get naturalized, inability to apply for asylum, and mandatory detention. The consequences can be life-long and could preclude an alien from ever returning to the United States.

Marijuana Possession - Grounds of Deportability (Removability)

If you are a permanent resident, you are not safe if you were convicted of a drug offense. If after your admission to the United States you were convicted of a violation of (or conspiracy or attempt to violate) law relating to controlled substance as defined in 21 USC § 802, you are deportable. Marijuana is a controlled substance according to federal law.

However, a single offense of possession for personal use of 30 grams or less of marijuana (or 8 grams of hashish) will not make you deportable. This exception will not apply if a legal permanent resident travels abroad and then attempts to enter the U.S. Upon trying to enter, even a conviction for simple possession of less than 30 grams of marijuana will make you inadmissible.

A drug offense includes simple possession, possession with intent to distribute or sell, sale or distribution. Possession of drug paraphernalia is also a controlled substance offense and would make a permanent resident deportable. In some cases, if paraphernalia is connected to possession of less than 30 grams of marijuana for personal use, it is not a deportable offense.

It is quite possible for legal permanent residents living in a state that legalized marijuana to become complacent and forget that even a simple possession can have severe immigration consequences and result in removal. It is absolutely not advisable for permanent residents to grow or be involved in any way in marijuana business or consumption. You cannot transport marijuana to other states, so be aware if you have marijuana residue or paraphernalia in your car when you travel.

In addition to the above general grounds of removability, a permanent resident would also run into severe trouble if their marijuana conviction is deemed an aggravated felony under immigration law. Aggravated felonies make permanent residents ineligible for the majority of removal relief. A state conviction of marijuana possession is not an aggravated felony, but it can become one if it’s a repeat offense. If your marijuana offense is beyond simple possession and is punishable as a felony under federal law, it would be deemed an aggravated felony.

The federal law describing aggravated felonies also provides a potential “safe haven” for giving away small amounts of marijuana, which is theoretically “distribution.” Under Board of Immigration Appeals precedent, the noncitizen bears the burden of proving that a conviction for possession with intent to distribute involved “a small amount of marijuana for no remuneration.” Keep in mind, though, that such a conviction would still be a drug offense and would potentially make you removable.

Thus, if you are a legal permanent resident facing a conviction for marijuana possession, distribution or sale, do everything in your power to plead to a non-specified drug offense or an offense involving a simple possession of less than 30 grams.

Marijuana Possession - Grounds of Inadmissibility

If you are undocumented and are seeking to apply for adjustment of status or other relief, it is necessary to show that you are admissible into the United States. A conviction for any drug offense, even simple possession of less than 30 grams of marijuana, would make you permanently inadmissible. That means you cannot apply for a change of status, permanent residency, or a visa at a U.S. embassy abroad.

If you are applying for a green card or an immigrant visa and you have a conviction for a possession of less than 30 grams, you are eligible to apply for a waiver of inadmissibility. That means you can ask for forgiveness for your offense if not allowing you to enter the U.S. would result in extreme hardship to your U.S. citizen or permanent resident child, spouse, or parent. Such a waiver is extremely hard to get and requires gathering mountains of supporting evidence and arguing your case.

If you want to apply for a nonimmigrant visa and you were found inadmissible for a controlled substance offense, you can apply for a INA 212(d)(3)(A) waiver. To make a decision on this waiver request, a consulate office would consider the recency and seriousness of the offense; the reasons for the travel to the United States; the positive or negative effect of the planned travel on U.S. public interests.

Conclusion

Even if marijuana is legal in your state, its possession is still an offense under federal law. If you are caught with marijuana and are facing a conviction for possession, it is important to be aware of potential immigration consequences. Make sure your criminal defense attorney has experience with immigration issues and discuss various options of avoiding a controlled substance conviction altogether, or keeping the record of conviction as vague as possible.