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How past marijuana related convictions can affect noncitizens without status living in the United States.

By December 14, 2020April 30th, 2021Immigration
Courtesy of Jon S on Flickr, labeled for reuse.

I last entered on a student visa and never left the United States since my entry. I am now married to a US citizen who is intending to petition for me to obtain my green card, so I would like to know whether a marijuana related conviction from my past will affect my green card application?

Marijuana is a controlled substance under federal law which means that any violation of a drug related law in any state that includes the drug marijuana potentially disqualifies you from obtaining a green card.

I heard that there are available waivers that can forgive past drug convictions including marijuana convictions.

There is a waiver available, but only for convictions for possession of 30 grams or less of marijuana. A conviction for any other federally controlled substance or for amounts greater than 30 grams of marijuana will disqualify for you from the green card including convictions for drug related crimes with elements that require acts of sale or distribution for compensation of a drug including marijuana or any drug related offense.

So, if I was convicted for possessing less than 30 grams of marijuana, will I be able to obtain the green card?

Potentially yes, but the waiver is not granted automatically. You will need to make a formal application which can be made with your green card application or after your interview at the consulate abroad. The waiver can be based on evidence that the conviction occurred 15 years or more ago and that you have rehabilitated and that your approval would not be contrary to national interests or the waiver can be based on evidence and explanation on how your parent(s), spouse, son or daughter who are either legal permanent residents or US citizens will suffer what is called extreme hardship if your waiver and green card are not approved.

When basing your waiver on rehabilitation, you are attempting to convince USCIS that you will not reoffend and that you will be or have been a productive and law abiding individual since your conviction to convince USCIS that your approval will not be contrary to the national interest. If your waiver is based on hardship, you still want to show rehabilitation as well as showing how your family member depends on you. Some examples on how to demonstrate hardship and/or dependence include the spouse and children of a household depending solely, primarily or substantially on your income; your assistance of an older parent to attend medical visits as well as paying for medication or scenarios where the family member requires care  because of some sort of disability. There is no set amount of evidence that will automatically lead to an approval, so the case depends at times on creativity and detailed orientated work in explaining the hardship using financial and medical related evidence in combination with personal statements and legal argument to effectively present a case with an increased chance for approval.

I’m not really sure how much marijuana I was caught with, so if I was convicted of possessing more than 30 grams of marijuana, will I be disqualified with no options?

Potentially yes, but there still maybe a couple of options an immigration attorney can look at. Although many states have marijuana specific crimes, a situation where a person is accused of possessing marijuana does not always necessarily result in a marijuana conviction. With the guidance and aid of an attorney with knowledge of immigration conviction consequences, an individual charged with marijuana possession may end up pleading to a state drug statute where the identity of the drug is not revealed in the record of conviction. If the drug statutes in the state list more drugs as being illegal than what the federal drug list contains, then it is possible that the noncitizen will not be disqualified from the green card for having an inconclusive record of conviction with respect to the identity of the drug.

 However, keep in mind that the law regarding drug convictions is still developing, so although this scenario may work in most states, there maybe states where this scenario will not work or the law is not fully developed enough to know for sure whether an inconclusive conviction as to the identity of the drug may be enough to prove to a USCIS officer that the noncitizen is not disqualified.

Finally, limited to a select few states in the United States which are under the authority known as the jurisdiction of the US Court of Appeals for the Ninth Circuit if your conviction for simple possession happened before July 14,  2011 and you later had the conviction dismissed or can have it dismissed from your record even after you had pled guilty, such a conviction will not be considered a conviction for immigration purposes meaning that you will not be considered disqualified from the green card. This will only work for minor offenses of simple possession of a certain drug. Furthermore, although the law is fairly established on this issue in the Ninth Circuit it is either not addressed or not supported by other US Appeals Courts in other regions in the United States, so for now this is a very limited option.

What if I don’t live in a state under the authority of the Ninth Circuit?

Then the expungement option will not work, or it is unclear at best whether it will work. If in a state outside the Ninth Circuit another option to explore is to consider looking into post-conviction relief. Post-conviction relief is a process where you request a court to have a past judgement of conviction vacated/dismissed based on a substantial error or defect committed in the original criminal matter. Most cases in this scenario come from improper or insufficient advice from a criminal defense attorney where the attorney failed to properly advise a client of the immigration consequences of pleading guilty.

If this request is granted, this type of relief serves to dismiss your conviction, creating a scenario where you would no longer be subject to being disqualified from a green card. However, note that Although this option seems ideal there are some important issues to consider before pursing this option. First, this option may not be available in states where you have a limited time to make the request after conviction and sentence and you failed to make the request within that limited time frame. Second, even if you are successful having your conviction dismissed, this does not mean you are free and clear from the original charge. Most often state prosecutors will be more determined in seeking to continue prosecution against you where they may now be less motivated to enter into an beneficial agreement. The result in such a scenario maybe a conviction for the same exact charge, but with a harsher sentence than what you received from the original conviction. Therefore, if this option is to be considered, the advice and representation of an experienced attorney is required to advise you if this option is not only possible where you reside, but also confirm whether this option will do more harm than good in your situation.

Bottom line, whatever the option you are considering, an experienced immigration attorney will be able to advise of which option maybe available for your case.

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