Ann Elise McCaffrey, Esq.


from the world of immigration law and defense

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Marijuana 101 for non-U.S. citizens

New York has a violation for marijuana possession – New York Penal Law §221.05 – that judges and defense lawyers will tell you is “not a crime” and “does not give you a criminal record.” What they mean is that a NY marijuana violation does not stay on your criminal record in New York state. But if you have a green card or you are on a visa or are undocumented here in the US, you will have a criminal record for immigration purposes.

Usually, it will not be “safe” for you to plead guilty to marijuana possession. You can still be deported, denied US citizenship or lose your ability to travel outside the US. In states like New York, this can be confusing since the judge and maybe your attorney will tell you that you have not committed a crime and only sentence you to payment of a fine. (Under the law, defense attorneys and judges must inform you of the immigration consequences of a guilty plea, but this does not always happen now and almost never happened in the past.)

   Not just felonies! Misdemeanors and NY violations can have the same consequences as felonies under immigration law.

Under immigration law, people with drug-related convictions on their records face very severe penalties, including deportation. Marijuana is no exception. What a drug conviction on your record means for you depends on your specific legal status and immigration history. Read this article for some general information that explores how marijuana convictions and immigration law overlap. Call my office for a consultation to discuss your case in more detail.

There is a narrow exception under immigration law for possession of 30 grams or less of marijuana for your own personal use. There are instances where this exception will not apply, however. This 30 grams or less exception does not apply if you travel outside the US and return from abroad. The exception also disappears if you have any other drug conviction on your record. And it puts you at risk of losing certain other immigration benefits or having your naturalization application denied.

Convictions for selling marijuana (or possession with intent to sell) are even more serious. Usually, these convictions will be “aggravated felonies” for immigration. (Remember that a crime which is a misdemeanor can still be an aggravated felony for immigration purposes.) Some people may have a conviction on their record for marijuana sale that does not count as an aggravated felony, but only if the state law would not punish “social sharing.” Making this legal argument is technical and complicated; speak to a lawyer if you have questions about your marijuana conviction.

  An old criminal case from your past will still affect your immigration case now or in the future.

You have a conviction when you have gone to criminal court, and either pleaded guilty or the judge found you guilty, and you got some kind of sentence. A sentence could be a fine, probation, community service or jail time. An arrest occurs when the police take you into custody and you are accused of breaking the law. An arrest can end in a conviction or a dismissal. Under immigration law, there are also penalties based on certain kinds of marijuana related arrests, even where there was no conviction or no conviction yet. For this reason, speak to an immigration lawyer with solid knowledge of criminal convictions about your case.

Unfortunately, changing attitudes and laws in the US around marijuana use make it hard to know what you should expect to happen to your immigration case if you get a marijuana charge or a marijuana conviction. Some marijuana convictions will make you deportable. Some will make you inadmissible. Some will lead to time in immigration detention. Some will make your immigration case longer, riskier and more expensive. Find out how a marijuana arrest or conviction affects you before you travel outside the U.S. or submit any applications to USCIS. Always get advice from an immigration lawyer before you take any plea in a criminal case involving marijuana! The consequences can be serious for your immigration status or your immigration case.

Elise McCaffrey