Prior, Pre-Prop 64 H&S C 11357, Prior version Analysis of 11357 as written before Prop 64 took effect on 11/9/16 See article for more on Prop 64 and on marijuana and immigrants.

Prior, Pre-Prop 64 H&S C 11357, Prior version Analysis of 11357 as written before Prop 64 took effect on 11/9/16 See article for more on Prop 64 and on marijuana and immigrants.

Offense

1See analysis or Prop 64 at ILRC, Immigration Impact: The Adult Use of Marijuana Act (September 2016) at https://www.ilrc.org/immigration-impact-analysis-adult-use-marijuana-act.
Note that while California has legalized certain conduct relating to marijuana for adults, for noncitizens marijuana remains a federally defined controlled substance. Even without a conviction, the person could be held inadmissible if they formally admit to an immigration official that they have possessed marijuana—even if the conduct was permitted under California law. For community flyers in different languages warning immigrants not to discuss marijuana conduct with immigration officials, and for a legal Practice Advisory on marijuana and immigration, go to https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.

Possess:
(a) Concentrated cannabis
(b) Marijuana, 28.5 grams or less
(c) Marijuana, more than 28.5 grams
(d) Marijuana on or near school grounds, ranked by age of defendant

Aggravated Felony (AF)

Not AF, unless a prior possession is plead or proved
See Advice at current 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes

Crime Involving Moral Turpitude (CIMT)

Not CIMT

Other Removal Grounds

Pre-Prop 64: Deportable and inadmissible CS offense, except that there is less punishment for conviction/s arising from a first incident involving possession of 30 gm or less of marijuana. See discussion at current 11357(a), above.
Deportability. If no drug priors, conviction for possessing 30 gm or less of marijuana is not a deportable offense. This includes any conviction of (b). It includes conviction of (c) if ICE can’t produce evidence, including from outside the ROC, proving that the amount exceeded 30 gm. See current 11357(b), above.
Inadmissibility. All current and former 11357 offenses are inadmissible offenses. But if D has no drug priors, might be able to apply for 212(h) waiver for qualifying conviction of 30 gm or less. See current 11357(a), (b) above.

Advice and Comments

Argument: See Advice at current 11357(a)(2), above, for argument that cannabis as defined by California law is not a controlled substance for immigration purposes.

Pre- and post-Prop 64 versions of 11357 have different subsections that prohibit different conduct. Please read the full discussion of marijuana at the analysis of the current, post-Prop 64 version of 11357, above.

Prop 64 Post-Conviction Relief. Prop 64 provides a post-conviction relief mechanism that can dismiss and seal a conviction for conduct that no longer is unlawful because the conviction is “legally invalid.” H&S C 11361.8(e)-(h). While this ought to be an effective vacatur for imm purposes, until we have precedent to that effect the best practice is to act conservatively and use post-conviction relief vehicles such as 1473.7, 1203.43 for former DEJ, and others. See more resources at https://www.ilrc.org/immigrant-post-conviction-relief

Concentrated cannabis: See discussion in current 11357(b), Advice column, above, regarding conviction under former 11357(a).

Schools. Conviction under former 11357(d) does not qualify for the 30 grams benefit. See current 11357(c), above.

2020-10-22T16:26:20+00:00Updated January 29th, 2020|