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

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.2 This 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.

In sum, the new California definition of cannabis, created by Proposition 64, is overbroad and indivisible compared to the federal definition of marijuana, and thus is not a controlled substance for immigration purposes. Under this reasoning, no conviction involving California cannabis from on or after November 9, 2016 (the effective date of Proposition 64) is a controlled substance conviction.  Here is a summary of the argument.

Under the categorical approach, every criminal law term that appears in removal grounds, including “controlled substance,” has a federal “generic” definition. The federal generic definition of “marihuana” is 21 USC § 802(16)(B). It includes the entire cannabis plant, except for two parts: it has long excluded the “mature stalks” of the plant, and as of December 20, 2018, under the Hemp Farming Act, it excludes “hemp,” which is defined at 7 USC § 1639o as any part of the plant that contains no more than 0.3% of THC.  So, the federal law definition is a bit narrow because it does not reach any cannabis with 0.3% or less of THC, or any mature stalks at all, regardless of percent of THC.

Next we compare the generic definition to the relevant state definition. In Matter of Guadarrama, 27 I&N Dec. 560 (BIA 2019), the BIA considered a Florida conviction for possession of marijuana, as defined by Florida Statute §§ 893.02(2), (3). Florida had excluded mature stalks from its definition of marijuana (like the federal statute), until in 1978 it added them back in. The respondent argued that his conviction did not make him inadmissible under the controlled substance ground, because the Florida definition (which includes mature stalks) is broader than the federal definition (which does not). The BIA acknowledged that under the plain language of the Florida statute, the Florida definition of marijuana is overbroad because it includes mature stalks. Recall that since November 9, 2016, the California definition also has included mature stalks.

Still, the BIA denied Mr. Guadarrama’s case. Under the categorical approach, along with showing that a state statute reaches conduct not covered by the generic definition (e.g., possessing mature stalks), one also must show a “realistic probability” that this conduct will be prosecuted, and it was not just invented as an exercise in “legal imagination.” This can be done by producing an actual case where that conduct was prosecuted. In addition, in most but not all jurisdictions, the realistic probability of prosecution can be shown without cases as long as the conduct is clearly set out in the language of the statute. In Guadarrama, however, the BIA reaffirmed its (minority) stance that the clear language of a state statute alone is not enough to establish a “realistic probability” of persecution; the person must show actual prosecutions involving mature stalks. Mr. Guadarrama did not present this, and he lost.

Fortunately, most circuit courts of appeals, including the Ninth Circuit, disagree with the BIA. They permit clear statutory language to demonstrate a realistic probability of prosecution, and would have held for Mr. Guadarrama. For example, the Eighth Circuit held that the same Florida marijuana offense is not a controlled substance conviction for immigration purposes. Regarding the realistic probability of prosecution issue, the court acknowledged that case examples are required for this showing if a statute is ambiguous or vague. “But when the statute’s reach is clear on its face, it takes no ‘legal imagination’ or ‘improbable hypotheticals’ to understand how it may be applied and to determine whether it covers conduct an analogous federal statute does not.” Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021). The court noted that the First, Second, Third, Fourth, Ninth, Tenth Circuits, the Sixth Circuit in unpublished cases, and at least some Eleventh Circuit cases have held that statutory language alone is sufficient to prove realistic probability of prosecution, and that Supreme Court cases, without discussion, have acted on that premise. The Fifth Circuit, like the BIA, accepts only case examples. See Gonzalez at 659-61 and n.3.

Under this reasoning, conviction of a California cannabis offense on or after November 9, 2016 should not be held a controlled substance offense within the Ninth Circuit (and most other jurisdictions). The Ninth Circuit holds that clear language in the statute is sufficient to show a realistic probability of prosecution, without cases as evidence. See Chavez-Solis v. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015) (quoting United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc), abrogated on other grounds).

Since November 9, 2016, the California statute clearly includes mature stalks with more than 0.3% THC, and these are not reached by the federal generic definition. Before Proposition 64, the California and federal statutory definitions of marijuana both excluded mature stalks. California H&S C § 11018 provided in part, “’Marijuana’ means all parts of the plant Cannabis sativa L. … It does not include the mature stalks of the plant …” (November 8, 2016). That definition was changed by California Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. Proposition 64, § 4.1, amended § 11018 by ending the exclusion of mature plant stalks, and instead excluding the narrower category of “industrial hemp” (which is defined the same way as federal “hemp”: any part of the plant that contains no more than 0.3% of THC.) California cannabis is more broadly defined 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. In fact, some mature stalks of marijuana do have a THC level that is higher than 0.3 percent, which is why California decided to regulate them. See, e.g., Small & Marcus, Hemp: A New Crop with New Uses for North America, in Trends in New Crops and New Uses 284, at 284, 293-94 (Jules Janick & Anna Whipkey eds., 2002) (noting how Canada was deliberating not cultivating certain strains of hemp because a “disturbingly high percentage of the collections have THC levels higher than 0.3%.”).

The California definition of marijuana also is indivisible. The statute is not phrased in the alternative, with one section referring to mature stalks. Also, 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). Because the California statute is overbroad and indivisible, no conviction relating to cannabis as defined by Prop 64 is a controlled substance offense, even if the particular offense did not involve mature stalks.
While pursuing this argument, at the same time investigate possible post-conviction relief.

Defenders should try not to rely on these defenses and not to plead to a cannabis offense, but should know they exist when evaluating any conviction from on or after 11/9/16. 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 considerably in immigration court.

If the best options are between a plea to cannabis or to some other substance, cannabis is best for immigration purposes due to this defense.

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 (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.

2021-05-14T16:01:25+00:00Updated May 14th, 2021|