If pot is legalized, it can still have big consequences for certain immigrants

Kate Morrissey Contact Reporter


If California voters choose to legalize marijuana in November, that vote may not affect all of California’s residents in the same way.

Non-citizens, green-card holders and undocumented immigrants alike may still face consequences for using marijuana — including not being allowed to become citizens, getting deported or not being allowed back in the country if they leave.


“In general, in states where marijuana consumption has been legalized, it’s really legal with a big asterisk next to it for non-citizens,” said Jennifer Casey, an immigration attorney in Denver. “Ultimately, the way I advise my clients, unless you are a U.S. citizen, you should not be consuming marijuana, selling marijuana, buying marijuana or distributing it because the risks are just too great.”


Close to 13 percent of San Diego County residents are non-citizens, and about 14 percent of California’s residents are non-citizens, according to U.S. Census data. This is much higher than the U.S. as a whole, where about seven percent of residents are non-citizens. In Colorado, where marijuana is already legalized, non-citizens make up about six percent of the population.


Casey said until federal law catches up to state law, non-citizens could be barred from the U.S. for life for doing something that is legal in their state.


“Where we see this the most is when we have green-card holders that are trying to do one of two things: travel outside US and try to come back in or want to naturalize and become US citizens,” Casey said.

She said a green-card holder leaving the country on vacation could be permanently banned from coming back if a Customs and Border Protection officer thinks that the immigrant used marijuana here. No conviction is necessary.

“‘Oh, I see you’re from Colorado or Washington. You smoke any weed while you’re there?’” Casey said, imitating an interview at the border. “Most green-card holders will say yes because they think they’re safe. It renders them inadmissible to the United States, and there’s no waiver. They’re done.”


San Diego-based immigration attorney Jan Bejar said the discrepancy arises because marijuana is still a crime at the federal level. He said the federal government has chosen not to allocate funds for criminal prosecutions relating to marijuana in states that have legalized it, but the federal government still thinks of dispensaries — medical or otherwise — as illegal drug trafficking. Since immigration cases are considered civil cases, the funding restriction on criminal prosecutions does not apply.


Bejar said since marijuana became medically legal in California, he’s had to advise clients not to work in dispensaries because even doing low-level work at one could be considered helping with drug trafficking.


In the Immigration and Naturalization Act (the main law that governs immigration in the U.S.), drug trafficking is considered an “aggravated felony,” a class of crimes that are a deportation priority for the Department of Homeland Security.


On top of that, Bejar said, if that dispensary worker has a spouse or child outside the country that the worker would like to sponsor for visas to come here, the relatives would also not be allowed in because they were supported by money obtained through drug trafficking.


Bejar emphasized that in order for the worker or family members to be barred from the country, the worker does not have to be convicted of drug trafficking in a criminal court. If an immigration official has “reason to believe” that the worker has done something that amounts to drug trafficking, that is enough.


Carrie Rosenbaum, who teaches immigration law at Golden Gate University School of Law, said non-citizens hoping to come to the U.S. temporarily as tourists (or on work or student visas) could also be turned back at the border if customs officers think they’ve used or otherwise handled marijuana. She said even those who are traveling with a spouse or children who are U.S. citizens could be denied entry.


Rosenbaum said she thinks legalization would be a step in the right direction for criminal justice reform, but it would require a federal change in law for the reform to benefit non-citizens.


“There’s a false impression that there’s an equality with respect to the way that non-citizens and citizens experience the criminal justice system itself,” Rosenbaum said.

Violeta Chapin, a law professor at the University of Colorado Law School, said the biggest issue she’d seen for immigrants in Colorado since legalization had to do with plea deals. The only drug offense that generally doesn’t result in deportation proceedings is if the person was in possession of 30 grams or less of marijuana for strictly personal use.

In the past, criminal defense lawyers could arrange for their immigrant clients who were caught with other types of controlled substances to make a plea bargain with prosecutors, she said. The client would plead guilty to marijuana possession instead, which meant the client would be penalized without getting deported.


She said now that a person can’t be charged with marijuana possession at the Colorado state level, there is no “safe plea” for immigrants.

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