It’s legal in California, but marijuana possession and use is still a federal offense that could cause serious problems for immigrants in the Golden State.
“It is still a federal offense,” said Inland-based attorney Russell Jauregui. “Federal law controls immigration and thus people will still face severe immigration consequences for marijuana conviction/use.”
Undocumented immigrants can be deported for marijuana consumption in certain circumstances and may risk not being admitted back into the United States if they leave.
Immigrant rights activists and attorneys are reminding immigrants of potential consequences at a time when President Donald Trump is ramping up deportation efforts. The White House has said that any immigrant living in the U.S. illegally who has been charged or convicted of any crime, or even suspected of committing a crime, is now an enforcement priority.
Virginia Kice, a spokeswoman with the U.S. Immigration and Customs Enforcement, or ICE, declined to say how the agency deals with immigrants accused or convicted of marijuana crimes in states where it’s legal.
Instead, she reiterated the Department of Homeland Security’s focus on targeting all “removable aliens” who have committed crimes, beginning with those who have been convicted of a criminal offense.
Related: What you need to know about federal enforcement of marijuana laws in the age of Trump
While those who pose a threat to public safety will continue to be a focus, the department will not exempt classes or categories of unauthorized immigrants from potential enforcement, she said.
“All those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States,” Kice said.
That’s why immigrants need to be aware of consequences surrounding marijuana use, advocates said.
“It could happen that people think that now that it’s legalized, that it would be completely safe, but obviously in this era of increasing concern of criminalization, and the fact that the federal government has said it wants to crack down on marijuana on the federal level, we’re really just trying to help inform and be proactive with immigrants of these concerns,” said Angie Junck, a supervising attorney with the Immigrant Legal Resource Center, a San Francisco-based national nonprofit agency.
U.S. Attorney General Jeff Sessions in February said that federal officials would try to adopt “reasonable policies” for enforcement of federal anti-marijuana laws. Sessions has said he believes violence surrounds sales and use of the drug.
California is home to more than 10 million immigrants, according to the Public Policy Institute of California. Nearly half of all of the state’s immigrants are naturalized U.S. citizens and another 26 percent have some sort of legal status, including green cards and visas. It’s estimated that about a quarter of California’s immigrants are undocumented.
In a state where the immigrant population is so vast, the Immigrant Legal Resource Center in January 2017 issued a flier that spells out what non-U.S. citizens should and should not do when it comes to marijuana.
It advises non-U.S. citizens not to use marijuana until they are citizens, and not to work in marijuana shops. On top of that, it cautions undocumented immigrants not to leave the house carrying marijuana, a medical marijuana card, paraphernalia, or other accessories such as marijuana T-shirts or stickers. Additionally, they should never have photos, text messages or anything else connecting them to marijuana on their phone or social media accounts.
Most importantly, it advises non-citizen immigrants to never admit to any immigration or border official that they have ever have used or possessed marijuana.
What it boils down to, Junck said, is that immigration law is federal and marijuana use remains a federal offense, as well as grounds for deportation.
Marijuana is still listed as an illegal drug in the Controlled Substance Act and the Immigration and Naturalization Act deems drug trafficking an “aggravated felony,” a type of crime that has been a deportation priority.
Lawful permanent residents can be deported for any drug offense, with the sole exception of a conviction for possession of 30 grams or less of marijuana.
And, undocumented immigrants with a drug conviction can face a lifetime bar from ever gaining legal status. The only exception is a single conviction for possession of 30 grams or less of marijuana, and by showing extreme hardship to certain family members such as a spouse or children.
However, certain provisions under immigration law don’t always require a conviction in order for a person to be considered for deportation.
“Immigrants need to know that they can still face some consequences if they admit marijuana use to an immigration official,” Junck said.
“The biggest concern is admission to an immigration official,” she said.
Immigration officials can stop and ask people whatever they want; it’s just a question of whether the person decides to respond, Junck said. For example, when coming in from customs at the airport, officials can refer someone to what Junck referred to as secondary inspection.
“They may ask questions and those questions can vary from, ‘What’s your immigration status?’ to ‘Have you committed crimes for which you’ve never been arrested?’” Junck said. “Or maybe there’s a basic question that can be like, ‘Have you ever used marijuana?’”
Immigrant rights activists say the implications of admitting marijuana use are not widely known.
“There is a stigma about marijuana use in Latino immigrant communities and we need to erase that stigma if we are going to talk honestly about the legal repercussions of its use for non-citizens,” said Luis Nolasco, an immigrant rights organizer in the Inland Empire. “This is particularly for the older generation of undocumented parents who may have youth that engages in marijuana use.”
For now, it’s mostly unclear how federal authorities are going to address this legal situation. And in states where marijuana is legal, it’s a topic of serious concern for immigration attorneys and their clients.
“Under the Obama administration, I think it was treated more like a wait-and- see where we’re just going to kind of let this evolve,” said David Kolko, an immigration attorney in Colorado, where marijuana is legal.
“Under the Trump administration, I think people need to be even more cautious because there’s been certainly an impression that enforcement is going to be dealt with more aggressively and if they choose to use this marijuana issue as one enforcement tool, I think many immigrants … could be very vulnerable in terms of being able to stay in this country or move forward on their immigration cases,” Kolko said.
