Immigrants in Colorado face their own version of reefer madness as they deal with a dichotomy in state and federal drug laws that is especially tricky for non-citizens.
The state legalization of marijuana in 2012 gave residents the right to use and possess the herb and to make money in the cannabis industry. But the fact that federal law still makes all that illegal has much more import for immigrants than citizens. For those without citizenship, that gap raises the potential of detention, deportation, and denial of entry into the country.
“We advise clients that marijuana involvement is risky – especially for those applying for citizenship,” said Denver immigration attorney Jennifer Casey. “There is so much risk for them.”
Non-citizens can be deemed drug traffickers, drug addicts or drug abusers for having any marijuana convictions or for simply admitting to using marijuana. Marijuana involvement also can be considered “moral turpitude” – a potential deal-breaker when it comes to citizenship. Proving good moral character is one of the prerequisites for citizenship and, in some cases, for visas to enter or remain in the country. Being involved with marijuana can be viewed as a moral failing. It falls in the same category as prostitution, human smuggling and habitual drunkenness.
An immigrant doesn’t even have to have toked up. Simply admitting plans to use marijuana or to participate in the legal marijuana trade in Colorado is enough to lose the stamp of “good moral character.”
That attitude is rooted in the War-On-Drugs era of the 1980s and ’90s when severe penalties were dictated for non-citizens involved with drugs. A study by the Human Rights Watch organization found that attitude has not changed much. The study found that from 2007 to 2012 more than 34,000 immigrants were deported for marijuana possession.
Another 22,000 were deported for selling marijuana.
There are no current studies to show how that has changed since marijuana was legalized in Colorado in 2012, followed by decriminalization in 22 other states. There are also no guidelines that give non-citizens any legal comfort when it comes to cannabis use in Colorado and those other states.
The U.S. Department of Justice has advised that prosecutorial discretion should be part of enforcement of minor marijuana crimes. The department currently does not focus on prosecution of recreational marijuana use as long as state regulations are followed. But the Immigration and Customs Enforcement agency has resisted setting any clear parameters for who is and isn’t penalized. The only policy suggestion in federal agency guidelines is that a single offense of possessing 30 grams of marijuana or less for personal use should not trigger a deportation action. The use of the word “should” gives agents wide leeway.
The guidelines don’t mean immigrants’ compliance with state laws can serve as a legal defense in immigration courts. That leaves non-citizens with no avenue to challenge a federal immigration official’s decision relating to marijuana.
A Colorado man identified only as “Antonio S” in the Human Rights Watch report is an example of how damaging marijuana use can be for non-citizens.
Antonio S had come to the United States from Mexico when he was 12-years-old and would have been eligible for legal residency under the Deferred Action for Childhood Arrivals policy. But before he could complete that process, he was convicted of possession of marijuana. He pleaded guilty to the charge without an attorney to advise him – and without realizing the import of the plea. He was detained for more than a year before he was deported.
University of Colorado associate law professor Violeta Chapin, said she hasn’t been aware of any immigrants being detained simply for marijuana offenses in Colorado in recent years. But she still views it as a danger area because immigrants in removal proceedings for other crimes or immigration violations can be asked about marijuana use. It can be another reason to deport.
Chapin said she also expects marijuana to become more of an immigration issue as the crime of Driving Under the Influence of Drugs is more widely enforced. ICE has traditionally brought the hammer down on immigrants with Driving Under the Influence of alcohol convictions. She said she doesn’t expect that to be any different with DUIDs.
Casey said until better guidelines are issued, she and other immigration attorneys, under guidance from the American Immigration Lawyers Association, advise all non-citizens to steer clear of cannabis. That includes those who have entered the country illegally and are living in the shadows, all the way to those with green cards who are taking the final steps for citizenship.
“This is uncharted territory,” Casey said. “It is a really tricky area.”
Photo credit: Dank Depot, Creative Commons, Flickr.