Offense
Possess no more than 28.5 grams of cannabis or 8 grams of concentrated cannabis, while age 18-20 (infraction). ****
Caution: While this conduct is lawful for age 21 or older, see Advice regarding danger of admitting adult conduct with marijuana to imm officials.
Aggravated Felony (AF)
Not an AF, unless a prior possession is plead or proved.
See Advice for argument that California cannabis is not a controlled substance for immigration purposes
Crime Involving Moral Turpitude (CIMT)
Not a CIMT.
Other Removal Grounds
See Advice for argument that this is not a CS for immigration purposes. However, defenders must conservatively assume it is a CS, at this time.
Immigration law provides less punishment for one or more convictions arising from a first drug incident involving possession for personal use of 30 grams or less of marijuana (including concentrated cannabis). This also includes possession of marijuana paraphernalia and, according to the Ninth Circuit but not the BIA, use of marijuana.1A noncitizen with one or more convictions that arose from a single incident “involving possession for one’s own use of 30 grams or less of marijuana” (according to the federal definition of that substance) is automatically not deportable under the controlled substance ground. 8 USC § 1227(a)(2)(B). The person is inadmissible under the controlled substance ground at 8 USC § 1182(a)(2)(A), but some LPRs and persons applying to become an LPR can apply for a discretionary “212(h)” waiver of inadmissibility. See 8 USC § 1182(h). In addition, it is not an automatic bar to establishing good moral character. 8 USC § 1101(f)(3).
Under federal law, the term marijuana includes all parts of the plant, including concentrated cannabis (hashish). 21 USC § 802(16). The 30 grams or less benefits extend to using paraphernalia relating to a small amount of marijuana. Matter of Davy, 26 I&N Dec. 37 (BIA 2012). The Ninth Circuit has held that the “30 grams” benefits also extend to being under the influence of marijuana (Flores-Arellano v. INS, 5 F.3d 360, 363 (9th Cir. 1993), Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005)), but the BIA indicated that they do not (Matter of Davy, supra at n. 3). See further discussion and defenses relating to the 30 grams exception at Zota, Matter of Davy and the Categorical Approach (NIPNLG January 15, 2013) at http://www.nipnlg.org/practice.html See Advice for argument that Cal cannabis is not a controlled substance.
Deportable. If no drug priors, this is not a deportable CS conviction due to a statutory exception for the 30-gram category. But any drug prior will destroy the exception and make this a deportable offense.
Inadmissible. Yes, inadmissible CS conviction. But if no drug priors, an LPR or LPR applicant might be eligible to apply for discretionary waiver, 8 USC 1182(h). Also, conviction is not an automatic bar to showing good moral character (e.g., for naturalization to USC).
Advice and Comments
Current H&S C 11357(a) (2) See also ILRC, Immigrants and Marijuana (2021).
Infractions: Although the BIA has held that some states’ infractions do not rise to the level of “convictions” for immigration purposes, and there are good arguments that California’s should be treated like that, in practice DHS is treating California infractions as convictions. A cannabis infraction is potentially a dangerous conviction of a controlled substance offense! See also 11358, a potential “aggravated felony infraction.”
Fight hard to avoid any CS conviction, even 28.5 grams of marijuana or less. Try instead for PC 32, other non-drug offense, or PC 1000 pre-trial diversion (for client who is likely to succeed). See Advice to 11377.
Immigration advocates can argue that an infraction is not a conviction. See infraction advisory at www.ilrc.org/crimes. At the same time, seek post-conviction relief under PC 14743.7 or other vehicles. The person likely had no defender.
Argument that California cannabis is not a federally defined controlled substance. Immigration advocates can argue that due to Prop 64 changes, California cannabis is overbroad and indivisible compared to the federal definition, and therefore California cannabis convictions on or after Nov. 9, 2016 (the effective date of Prop 64) are not controlled substance convictions for immigration purposes. See endnote for further discussion and citations. 2This argument was developed by the students of the Boston College Law School Ninth Circuit Appellate Program, and Associate Professor Kari Hong, as part of the case Prado v. Barr, 923 F.3d 1203 (9th Cir. 2019). In Prado the court denied relief, but did not reach all of the issues. Many thanks to them for sharing the argument. See also ILRC, Template Brief on Why California Cannabis Convictions on or after November 9, 2016 are not Grounds for Removal (2024). While pursuing this argument, at the same time investigate possible post-conviction relief.
The Supreme Court recently held that a state drug offense is a federally defined substance “only if the State’s definition of the drug in question ‘match[s]’ the definition under federal law.” Brown v. U.S., 144 S. Ct. 1195, 1201, (2024) (a prior state marijuana conviction is a sentence enhancement as a federal controlled substance offense under ACCA only if the federal and state definitions of marijuana matched at the time of the prior marijuana conviction).
Defenders should know that this defense exists, but because there is no precedent specifically on California cannabis, they must not rely on cannabis being a ‘safe’ immigration disposition. If it is necessary to plead to a cannabis offense, try to plead specifically to conduct limited to “mature stalks” at the plea colloquy, and provide some written proof of this. While this is not legally necessary to support the possible defense, it may simplify things in immigration court.
Post-conviction relief. PC 1203.43 should eliminate prior DEJ pleas for imm purposes, but because ICE is fighting against these it may be better to obtain 1473.7. For a single minor drug conviction from on or before 7/14/11, see Advice at 11377 regarding the Lujan benefit. Consider other post-conviction relief, including PC 1473.7 to vacate. See Advice to 11377. Prop 64 provides sealing post-conviction relief at H&S C 11361.8(e)-(h),but we do not have precedent that DHS must accept it and do not recommend it. See more resources at https://www.ilrc.org/immigrant-post-conviction-relief
Concentrated cannabis. See Advice at 11357(b)(2).
Admitting conduct relating to marijuana, working in the industry. Warn immigrants not to discuss marijuana with any imm officials without first seeing an imm lawyer, and not to work in the mj industry. Although mj has been legalized in many states, it remains a federal CS offense to possess, grow, sell, or share it. Noncitizens who admit possession or industry employment to an imm official might be found inadmissible, even without a conviction and even for conduct permitted under California law. USCIS recently reaffirmed it would impose these penalties. See online legal advisory and community flyers in multiple languages.3 See community flyers in English, Spanish, and Chinese warning immigrants about the dangers of even “lawful” marijuana conduct, and see legal discussion of risks and defenses at ILRC, Practice Advisory: Immigration Risks of Legalized Marijuana (2021), at https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.
On April 19, 2019 USCIS published a Policy Alert that announced that they consider employment in the marijuana industry, and admitting to possessing marijuana, a bar to establishing good moral character (“GMC”) for naturalization, even if it was legal under state law. It announced amendments to Policy Manual (Vol 12, Part F, Chapter 5) to reflect that. See https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf.
While USCIS did not discuss inadmissibility in these materials, being inadmissible is the underlying legal reason that this conduct would be a bar to the GMC required for naturalization. Being inadmissible under the crimes grounds during the period for which GMC must be proved constitutes a statutory bar to establishing GMC. See INA § 101(f)(3), 8 USC 1101(f)(3). In some areas USCIS has found people inadmissible on the grounds that USCIS has “reason to believe” the people participated in trafficking in marijuana, a controlled substance (this is a factual claim, based upon the fact that the person listed a cannabis company as an employer on the I-485 or N-400). Or, they charge the person with being is inadmissible for admitting to having committed a federal drug offense (this requires a qualifying admission of possession, sale, distribution, etc., of cannabis by the person). See INA 212(a)(2)(A)(i)(II), (C); 8 USC 1182(a)(2)(A)(i)(II, (C).
Until now, Washington, Colorado, and a few other jurisdictions have been known to ask naturalization or even adjustment applicants if they ever have used marijuana—which many people innocently admit, based on their understanding that it is legally permitted under state law. These jurisdictions also target people who have worked in any capacity in the cannabis industry. Before the Policy Alert came out, in California it appeared that authorities did not go through this inquiry, except at the border. Now this may change. Practitioners should research what is happening in their local USCIS office to try to determine the risk of sending in an applicant for adjustment, naturalization, or other relief. See further discussion of legal risks and defenses involving legalized marijuana at the Practice Advisory cited above.