Dena Wurman, MPA, JD
Recently, a number of returning green card holders detained at the border have been reminded of a past marijuana offense. Immigration authorities are not concerned with the various and different marijuana laws of the 50 states. A marijuana conviction is a federal matter in the immigration context. A marijuana conviction is crime of moral turpitude (CMT).
The immigration consequences of criminal acts depend on a number of factors. These include a person’s immigration status, a prior criminal record and the specific contents of the court record of conviction.
Two ways one may be detained at the border are expedited removal or detention. At the airport or border this is called a expedited removal. During expedited removal, a person’s fingerprints will be taken, notice will be given, and the person will sign something. Detention is usually more than 24 hours.
If detained, there may be a hearing for bond in some cases. If bond is approved, one may be released until trial. Then, whether one might have a good chance to convince a judge of their eligibility to remain in the U.S. depends on circumstances such as family ties or length of residence in the United States.
With regard to a marijuana conviction, the petty offense exception to inadmissibility applies if a person is convicted only one time and the conviction does not occur within five years of legal entry into the US and the maximum possible sentence is less than one year. There are three hurdles one needs to overcome. It’s not just the amount of marijuana.
What is a conviction? In some states (Texas) a deferred adjudication under article 42.12, § 5 of the Texas Code of Criminal Procedure is a conviction for immigration purposes. Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998)
If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility.
If your client is facing conviction of only one crime involving moral turpitude and the crime was not committed within five years after his or her admission, s/he would not become deportable under this ground of deportation, but consider whether s/he would become deportable under another ground of deportation, e.g., deportability for conviction of an aggravated felony or of a crime of domestic violence.