Unlawfully sell, import, give away, administer, or (since 1/1/16) transport marijuana for sale
Offer to do these things
Aggravated Felony (AF)
Never AF: Give away or offer to give away mj under (a) or (b). See Advice for (a).
Pre-1/1/16 transport, because minimum conduct is personal use
Offering: Offering to commit 11360 offense is not an AF, but only in imm proceedings arising in the Ninth Circuit. See 11379. Here, a prior conviction for, e.g., offering to sell is not an AF.
Yes AF: Sell, post-1/1/16 transport
Crime Involving Moral Turpitude (CIMT)
CIMT: Sale, transport for sale, offering to do these is a CIMT.
Conservatively assume giving away for free is a CIMT.
Transport based on pre-1/1/16 conduct should not be a CIMT because the minimum conduct is transport for personal use
Other Removal Grounds
Yes, deportable and inadmissible CS offenses. To avoid, consider 11377 or 11379 with a non-federal substance defense, if possible. The best option is to plead to a non-drug offense.
Advice and Comments
Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat AF and CS charges. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions
Giving away mj. For discussion and citations, see endnote.1Not an aggravated felony. Generally, distributing a controlled substance is a felony under federal law and therefore is an aggravated felony under 8 USC § 1101(a)(43)(B). However, 21 USC § 841(b)(4) provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor. This means that the offense is a federal misdemeanor and therefore is not an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 193-99 (2013).
In Moncrieffe the Supreme Court held that the categorical approach applies to this category. Thus, where a Georgia statute punished a range of conduct including giving away a large or small amount of marijuana, the Court looked to the minimum conduct required for guilt. Because the minimum conduct included giving away a small amount of marijuana, and the statute was indivisible, no conviction under the statute was an aggravated felony as a matter of law, regardless of information in the record and regardless of whether the issue was deportability, inadmissibility, or eligibility for relief. The result was that the conviction made Mr. Moncrieffe deportable under the controlled substance ground, but it was not an aggravated felony that barred him from applying for LPR cancellation.
Defenders should be sure to plead specifically to giving away (or ideally to offering to give away), as opposed to sale or a vague record, as this offense held divisible between the types of conduct. See U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (H&S C § 11352 is divisible). “Offering to” provides an additional defense option within the Ninth Circuit, just in case ICE asserts that 11360(b) offense does not come within a “small amount.”
The Supreme Court declined to rule on what a “small amount” is, but it noted that the BIA “has suggested that 30 grams ‘serve[s] as a useful guidepost…’” Moncrieffe, 569 U.S. at 194, n. 7, citing Matter of Castro-Rodriguez, 25 I&N Dec. 698. 703 (BIA 2012). A conviction for giving away marijuana under the current § 11360 fits within this guidepost. The infraction at § 11360(b), giving away 28.5 grams, comes within the exception. The misdemeanor at § 11360(a), giving away another amount, also does, because it includes a minimum conduct of giving away 29 or 30 grams. Despite this clear law, we ask defenders where possible to plead to § 11360(a) specifically to 29 or 30 grams, or to otherwise note it in the record, because the defendant may be unrepresented and an immigration officer or judge might in error look to the record, in violation of the rule set out in Moncrieffe.
Lujan-Armendariz. Some older convictions for giving away a small amount of marijuana may qualify for a second key immigration benefit. A conviction for possession or possession of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before July 14, 2011 can be eliminated for immigration purposes by any “rehabilitative relief” (e.g., withdrawal of plea or dismissal of charges under Pen C § 1203.4, Prop 36, or the former DEJ even absent Pen C § 1203.43). This applies only in immigration proceedings held within the Ninth Circuit. The conviction can be from any jurisdiction, including another country. The person must not have violated probation imposed for the offense or received a prior pre-trial diversion (although these limits might not apply to defendants who committed the offense while under age 21).
Example: In 2010, John was convicted of giving away marijuana under H&S C § 11360. He completed probation without problems, and he had not had a prior pre-trial diversion. In 2015, he expunged the conviction under Pen C § 1203.4. John does not have a CS conviction for any immigration purpose, as long as immigration proceedings are held in the Ninth Circuit.
See Lujan-Armendariz v. INS, 22 F.3d 728 (9th Cir. 2000) (if a state offense would have been amenable to the Federal First Offender Act, 18 USC § 3607, had the case been held in federal court, then state rehabilitative relief will eliminate the conviction) and Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) (ending the Lujan-Armendariz benefit for state convictions received after July 14, 2011). For more information see “Practice Advisory: Lujan and Nunez” at www.ilrc.org/resources/practice-advisory-lujan-nunez-july-14-2011. A specific plea to giving away or offering to give away (do not leave the ROC vague) has two advantages:
- It is not an AF. Giving away under 11360(b) is best, but (a) also qualifies because the minimum conduct involves giving away 29 or 30 gm. In case imm authorities don’t know to apply the minimum conduct test, the best practice under (a) is specific plea to 29 grams; but if this was not done in a prior, it still is not an AF under Supreme Court precedent.
- A conviction from before 7/15/11 to giving away a small amount of mj may be eliminated for imm purposes by DEJ, Prop 36, or 1203.4, under Lujan.
Refugees, asylees, and trafficking: Almost any drug trafficking conviction is a “particularly serious crime,” bad for asylees, refugees. See § N.17 Immigration Relief Toolkit. Imm advocates will argue that sale of very small amount of mj may not fit this rule. Any sale also makes D inadmissible by giving gov’t “reason to believe” D participated in trafficking—a very bad ground. See § N.8 Controlled Substance.
Giving a small amount of mj away, pre-1/1/16 transportation (with no admission of intent to sell) or offering to commit those offenses may help avoid the above trafficking consequences—but possession is far safer. See 11379.