As more US states and municipalities legalize or decriminalize marijuana possession, it may seem petty and cruel to deport someone who is otherwise a law-abiding resident for possession of marijuana. But it does happen.
You can be deported for any drug offense in the United States except simple possession of 30 grams or less of marijuana. What does that mean, exactly? And, if you have a drug conviction for possession of more than 30 grams of marijuana, does that mean you will automatically be deported?
Can I Get Deported for Marijuana Possession?
Criminal convictions that make a person deportable, found in 8 USC Section 1227, include convictions for any controlled substance violation other than simple possession of 30 grams or less of marijuana:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
What is a Controlled Substance for Purposes of Deportation?
21 USC Section 802 defines a controlled substance as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” As a practical matter, this includes any controlled substance or precursor that a person could be charged with under federal law.
It does not include “distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.”
Can I Be Deported for Using Drugs?
Section 1227 also states that any person who is an addict or who abuses drugs is deportable:
Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.
“Addict” is defined by Section 802 as:
…any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.
Based on the language in Section 1227, a person may be deportable not only if they are an addict as defined by Section 802, but also if they abuse illegal drugs – even though they are not addicted.
Even worse, enforcement of this code section discourages legal residents from seeking help for substance abuse problems. If you are a legal resident concerned about potential deportation, you are faced with a choice of not seeking treatment for addiction or risking your addiction treatment being used as evidence in deportation proceedings…
You Can Be Deported for Marijuana Possession Greater than 30 Grams
Although there is an exception for possession of less than 30 grams of marijuana, there is no exception for possession of more than 30 grams, distribution, possession with intent to distribute, or other marijuana-related offenses.
In fact, when you are charged with a greater marijuana offense that is later reduced to a misdemeanor offense, confusion can result, and ICE might still take action to have you removed from the country.
Consider the case of Joel Guerrero, who was a 37-year-old newlywed expecting a child when he was picked up by ICE and scheduled for deportation proceedings. He is a legal immigrant who came to the US when he was 17 years old.
Although ICE claimed he had a “felony conviction with intent to manufacture, sell or deliver…marijuana or a synthetic equivalent,” it turns out that he has a misdemeanor marijuana conviction and ICE was referring to his arrest offense, not his conviction.
But, will he still be deported? Was he deported? It’s not clear from media sources. Although he has been released from ICE detention, the question remains whether his conviction was for simple possession of less than 30 grams or another misdemeanor offense that is not covered by the simple possession exception…
Can I Be Deported for Smoking Legal Marijuana?
The one exception to controlled substance violations making you deportable is a conviction for simple possession of marijuana less than 30 grams.
If you are smoking legal marijuana, whether it is in a state where it is legal for recreational purposes or whether you have a prescription for marijuana use in a state where it is legal for medical purposes, you are not going to be convicted for a marijuana offense. But you are still using marijuana.
Although the federal government is not targeting marijuana users solely because they are using the drug in a legal manner, consider that the law also allows for the deportation of drug abusers and drug addicts… could the government begin to target marijuana card holders, persons who discuss marijuana use on social media, or persons who possess marijuana in a legal state?
If I Have a Drug Conviction, Will I Automatically Be Deported?
If your only conviction is for a minor drug offense, all may not be lost.
Even if you are targeted for removal, your immigration attorney may be able to ask for cancellation of removal or a waiver that allows you to remain in the country when it would create an “exceptional and extremely unusual hardship” to a US citizen or a permanent resident who is a family member.
There may be other circumstances that would allow us to fight your deportation proceedings – if you have been targeted for deportation, or if a minor drug offense is preventing your admission into the US, call the SC immigration attorneys at Coastal Law for a free consultation to find out how we can help.
SC Immigration Attorneys in Myrtle Beach
If you are facing deportation, inadmissibility, or denial of citizenship due to a minor drug offense, the Myrtle Beach immigration lawyers at Coastal Law want to help.
Call now for a free consultation to discuss your case by calling (843) 488-5000 or send us a message through our website.