Marijuana laws in the United States are constantly changing and differ state by state. It is now legal to possess weed for recreational use in many states, including California and New York. Several other states, like Florida and Pennsylvania, allow possession of pot for medical use with a doctor’s prescription. Even in states that do not allow recreational or medical use, there are movements to change the laws or at least decriminalize the enforcement of simple possession.
Nevertheless, marijuana (cannabis) remains a Schedule I drug under the federal Controlled Substances Act, meaning it is considered in the category of the most dangerous drugs for purposes of federal law. Since immigration law is federal law, marijuana convictions are still major problems for immigrants trying to adjust status or consular process to become a lawful permanent resident. While there is hope that federal law will one day change in response to the momentum towards liberalization of marijuana laws, at this point in time, it is still a major barrier to admissibility.
So, is there no hope for someone with a marijuana conviction who wants to get a green card? Not at all. With the right assistance, an adjustment of status or immigrant visa application can still be approved despite a pot conviction on one’s record. If you find yourself in this situation, what can you do?
The best option is to avoid getting such a conviction in the first place. Prosecutors will often offer deferred disposition, deferred adjudication, or other pleas that promise to “dismiss” the case after certain conditions are met. It is very important to realize that even if a case is dismissed at the criminal court, it can still be considered a conviction for immigration purposes. You therefore should not take any such plea unless you have consulted with a lawyer knowledgable in immigration law and have a clear understanding of how any plea will effect your immigration case.
If you already have a conviction, one good option is to try to get the conviction overturned. Many people are under the wrong impression that if they get a conviction expunged or sealed that it will be off their record and not effect their immigration case. To the contrary, a conviction that has been expunged, dismissed, canceled, vacated, discharged, sealed, or otherwise removed due a rehabilitative statute remains a conviction for immigration purposes.
However, if a conviction is overturned on the merits, that conviction is gone and will no longer impact your immigration case. There are different reasons why a conviction may be overturned on the merits. For example, if your criminal defense attorney failed to warn you of the immigration consequences of your plea deal, that could be considered ineffective assistance of counsel and justify overturning your conviction.
Depending on what happened in your case and how long it has been since the conviction, there may be an opportunity to appeal or reopen it, or to have it vacated pursuant to a writ of habeas corpus. You should talk to an experienced immigration attorney to see what your options are in this area.
If you cannot overturn the conviction, you may be able to apply for a 212(h) waiver. Unfortunately, the only people eligible for this waiver are those whose marijuana convictions are for personal use of 30 grams or less. If you were convicted of simple possession of a controlled substance, in order to be eligible for the waiver, you want it clear in the record that the controlled substance was marijuana (cannabis) and that the amount you possessed was 30 grams or less.
If you are eligible, you would then have to show that your removal from the country would pose an extreme hardship to your U.S. citizen relative (parent, spouse, or child). This hardship can be medical (your relative has a serious health problem that requires your help) or financial (your relative does not earn enough money to support the family without your help) or some other hardship.
In any event, it is a high standard that requires strict and extensive proof. It is important to seek help from an experienced immigration attorney to help with any such waiver application.
You can also receive the waiver if the conviction was more than 15 years old, or if you are applying for a VAWA self-petition as a victim of domestic violence from your U.S. citizen spouse. Again, this only applies to those with convictions for 30 grams or less or marijuana for personal use. These waivers require specific proof as well that an immigration attorney can help you with.
The immigration laws surrounding weed remain strict despite society’s growing tolerance of its use. Even minor convictions involving pot can have major impacts on your immigration status, and may make it much more difficult to get a green card. If you find yourself in this situation today, contact the experienced immigration attorneys at Salmon Haas Law for a free consultation.