Current H&S C 11357(a) (2) This analyzes the current statute, amended by Prop 64. See below for pre-Prop 64 version of 11357.

Current H&S C 11357(a) (2) This analyzes the current statute, amended by Prop 64. See below for pre-Prop 64 version of 11357.

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

Argument that California cannabis is not a federally defined controlled substance.  See endnote for further discussion and citations.2The following arguments were made in the case of Prado v. Barr, 923 F.3d 1203 (9th Cir. 2019), where the court denied relief, but did not reach all of the issues. Sample briefs arguing two points will be posted at www.ilrc.org/crimes in the near future. Many thanks to the students of the Boston College Law School Ninth Circuit Appellate Program, and Associate Professor Kari Hong, for developing and sharing these arguments.

This section will provide a brief summary of the arguments, which are:

– The new California definition of cannabis, created by Prop 64, is overbroad and indivisible compared to the federal definition of marijuana, and thus is not a controlled substance for immigration purposes. This would apply to all convictions from on or after November 9, 2016, which was the effective date of Prop. 64.

– Some convictions that occurred before Prop 64 took effect on November 9, 2016, and that have been recalled and re-designated as misdemeanors or infractions under H&S C 11361.8(e), are necessarily convictions of “new” offenses that also include the new definition of California cannabis. These also are not controlled substance convictions for immigration purposes.

The argument that after Prop 64, California cannabis is not a federally defined controlled substance was made in Prado v. Barr, but the court did not consider it because it decided that it was not relevant to Ms. Prado’s pre-Prop 64 conviction. The BIA has rejected a similar argument in a case arising outside the Ninth Circuit, in Matter of Guadarrama, 27 I&N Dec. 560 (BIA 2019).

The argument is based on the fact that the federal definition of marijuana excludes mature stalks of the cannabis plant (see 21 USC § 802(16)(B)), whereas Prop 64 changed the California definition to make it broader than the federal definition, by eliminating the exclusion of mature stalks. See changes to H&S C §§ 11018, 11018.5 after Prop 64. More specifically, 21 USC § 802(16) has excluded mature plant stalks for decades, and as of Dec. 20, 2018 legislation, § 802(16)(B) also excludes “hemp,” defined at 7 USC § 1639o as any part of the plant that contains no more than 0.3% of THC. So, federal law does not reach any substance with 0.3% or less of THC, or any mature stalks at all, regardless of percent of THC.  In California, before Prop 64 the definition of marijuana was the same as the federal; it excluded mature plant stalks. Prop 64 changed the definition in two ways: it ended the exclusion of mature plant stalks, and substituted the exclusion of “industrial hemp,” defined as any part of the plant that contains no more than 0.3% of THC. Taking these definitions together, California cannabis is broader than federal marijuana because federal law does not regulate any mature stalks, even if they have more than 0.3% THC, while California does regulate mature stalks as long as they have more than 0.3% THC. Prop 64 made this change deliberately and it has real-world application: while “mature stalks” in the past might have been used for only industrial purposes, today mature stalks or hemp in many cases contains more than 0.3% THC and is used for human ingestion. When it does, California regulates it, but federal law does not. As one example, the California agency advising restaurants on how to comply with Prop 64 states, “the use of industrial hemp as the source of CBD [cannabidiol oil] to be added to food products is prohibited.”  Alcoholic Beverage Control, Industrial Advisory: Cannabis and Alcoholic Beverages, Cal. Cannabis Portal (July 25, 2018) https://cannabis.ca.gov/2018/07/25/industry-advisory-cannabis-and-alcoholic-beverages/.  Thus, California cannabis is overbroad compared to federal marijuana. It also is indivisible, because California law does not treat conduct involving different parts of the same substance as separate crimes. See, e.g., People v. Goddard, No. A150479, 2018 WL 1755419, at *2 (Cal. Ct. App. Apr. 12, 2018). See argument posted at www.ilrc.org/crimes for further discussion.

In Prado, the court considered but apparently did not understand the second argument, which is that certain convictions from before Prop 64 become convictions of new offenses with new elements, including the new definition of cannabis, when they are recalled and re-designated under Prop 64 provisions. In many cases, changing a prior conviction to conform with Prop 64, under H&S C 11361.8(e), is not simply a reduction of sentence like Pen C § 17(b)(3) (which can reduce a “wobbler” felony to a misdemeanor) or even Prop 47. For H&S C § 11359, the offense at issue in Prado, the felony is changed to a misdemeanor with different elements that did not exist until Prop 64; therefore, the conviction must take on the elements of the misdemeanor. There are cases showing that Prop. 64 applies retroactively. See, e.g., People v. Smit, 24 Cal. App. 5th 596, 601 (Ct. App. 2018). Also, unlike Prop. 47, those eligible for Prop. 64 remain eligible for resentencing even when they committed presumptively disqualifying crimes before the marijuana offense at issue. See People v. Jones, F076611, 2019 WL 1513079, at *3 (Cal. App. Apr. 8, 2019) (“[T]he court had discretion in determining whether to reduce Jones’s offense despite his prior conviction requiring sex offender registration.”); People v. Taylor, 2E069373, 2019 WL 926601, at *12 (Cal. App. Feb. 26, 2019) (remanding because “the trial court was not aware that it had the discretion to impose a misdemeanor sentence.…”). Further, California Supreme Court authority strongly suggests that Prop. 64, like Prop. 47, applies retroactively to amend prior convictions without having the prior plea agreement withdrawn or rescinded. In Doe v. Harris, the Ninth Circuit certified a question to the California Supreme Court: “can the terms of a plea agreement be affected by changes in the law?” Doe v. Harris, 57 Cal. 4th 64, 66 (Cal. 2013). Doe v. Harris answered yes, explaining that a new sex offender registration program applies retroactively to an old plea agreement because “the general rule in California is that plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.” Id. at 71. In 2016, the California Supreme Court held that a trial court may recall and reclassify an offense under Prop. 47 without rescinding a plea agreement. See Harris v. Superior Court, 1 Cal. 5th 984, 992 (Cal. 2016). Harris v. Superior Court explained that Prop. 47 “applies retroactively to all persons who meet the qualifying criteria and are serving a prison sentence for one of those convictions, whether the conviction was by trial or plea. The electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement.” Id. As a result, arguably Prop 64 applies to any felony or misdemeanor that is dismissed, recalled, and reclassified as a misdemeanor or infraction, pursuant to Prop 64 provisions at H&S C § 11361.8(e), (f). In contrast to, e.g., Prop 47, Prop 64 not only reduces the offense level and potential sentence (which Prop 47 does), but in recalling and reclassifying the offense, it also amends predicate convictions of completed crimes to comport with the new law, including the amended definition of marijuana.

Finally, the petitioner in Prado argued that Prop 64 is not a “rehabilitative” statute based on good behavior, but a statute designed to correct an error: the racist and unfair application of marijuana laws. The court rejected this. The ILRC submitted an amicus brief objecting to the Prado decision’s misstatement of an ILRC report, where the court wrongly stated ILRC had said the re-designation was rehabilitative. The ILRC also stated that its report, which was published several months before the passage of Prop 64, had incorrectly assumed that the Prop 64 re-designation scheme was similar to Pen C § 17(b)(3), when in fact it is materially different.

See sample arguments, and ILRC amicus brief, on Prado and Prop 64 posted at www.ilrc.org/crimes.

Imm advocates can argue that due to changes made by Prop 64, cannabis as defined under California law is not a CS for immigration purposes, and therefore is not a deportable or inadmissible drug offense or aggravated felony, because it is overbroad and indivisible compared to the federal definition of marijuana. (The BIA rejected this argument in other jurisdictions, but there is a strong basis for it under Ninth Circuit law.)

This applies to convictions on or after Nov. 9, 2016. Arguably it also applies to convictions from before that date, if at any time they are recalled and re-designated as misdemeanors or infractions under Prop 64, on the grounds that this process of necessity results in a new offense that uses the new Prop 64 definition.

Defenders should not rely on this defense but should know it is a possibility. Advocates can assert the defense but should also pursue other strategies such as vacating the conviction. A model brief will be posted at www.ilrc.org/crimes in future.

Infraction. Conservatively assume a California infraction in adult (not juvenile) court is a “conviction” for imm purposes, because many imm officers treat it as such, although arguably in error. See 11358.

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.

Post-conviction relief. Use PC 1203.43 to vacate prior DEJ pleas for imm purposes. 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), although we do not yet have precedent that DHS must accept 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.3See 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 (2018), 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.

2020-10-21T23:00:18+00:00Updated January 29th, 2020|