Offense
Possess 28.5 grams cannabis or 8 grams concentrated cannabis on school grounds, if age 18 years or older
First offense is infraction, second is misdemeanor
Aggravated Felony (AF)
Not an AF, unless a prior possession is plead or proved
See Advice at 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes
Crime Involving Moral Turpitude (CIMT)
Should not be a CIMT
Other Removal Grounds
Assume this is a deportable and inadmissible CS offense with no 212(h) waiver. See Advice.
Advice and Comments
Review CS defenses at Advice for 11377 before pleading to this offense.
Defenders must assume that 11357(c) ) does not qualify for the 30 grams benefits discussed at 11357(a). The BIA held that added elements such as being in a school or jail prevent an offense from qualifying for the 30 gm marijuana benefits discussed in 11357(a). 1See Matter of Moncado, 24 I&N Dec. 62, 67 (BIA 2007) (small amount of marijuana in a prison); Matter of Martinez-Zapata, 24 I&N Dec. 424, 430 (BIA 2007) (drug-free zone). To get those benefits, try to plead to 11357(a) or (b).
Immigration practitioners should consider two defenses. First, see Advice at current 11357(a)(2), above, regarding the argument that California cannabis convictions from on or after Nov. 9, 2016 (the effective date of Prop 64) are not CS convictions for immigration purposes. Second, advocates can consider arguing, based on a Fifth Circuit decision, that 11357(c) comes within the 30 grams mj exception to the CS deportation ground, even if it does not come within other provisions, e.g., INA 212(h) waiver.
2Advocates can argue that the Ninth Circuit should adopt the Fifth Circuit’s interpretation of the plain language of the immigration statute. In Esquivel v. Lynch, 803 F.3d 699 (5th Cir. 2015), the Fifth Circuit refused to defer to or follow Matter of Moncado, supra, finding that the decision contradicts the plain language of the CS deportation ground at INA 237(a)(2)(B)(i). That section states that one is deportable for conviction of a CS offense “other than a single offense involving possession for one’s own use” of 30 grams or less of marijuana (emphasis supplied). The court noted that other INA sections relating to 30 grams of marijuana require the conviction to be for “simple possession,” not for personal use. The court refused to ignore the distinction and found that “personal use” could apply within a jail, no-drug zone, etc.(Note that the rule that Esquivel applied to resolve the case has changed, but that is not related to the court’s holding on the statutory language. The BIA and Ninth Circuit held that a deportable offense was necessary to stop Mr. Esquivel’s accrual of seven years of residence required for LPR cancellation. The Ninth Circuit found that because the conviction was not a deportable offense, Mr. Esquivel remained eligible. Since then, the Supreme Court has held that even an inadmissible offense will stop the clock. Barton v. Barr, 590 U.S. 222 (2020).)
While pursuing this argument, at the same time investigate possible post-conviction relief.
SB54: As a straight misdemeanor, law enforcement cannot notify ICE of release or transfer someone to ICE. See SB 54 advisory at www.ilrc.org/crimes-summaries.
Mandatory Detention: People not admitted to U.S. aare subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.