Negotiating Plea Deals

Facing Deportation For Marijuana Use? What Are Your Options?

by Flenn Lane

With medical marijuana now available in around half of all states, and recreational marijuana available in four more (plus the District of Columbia), it can be easy to forget that this drug is still classified as dangerous – and illegal – under federal law. Unfortunately, as some have discovered, this freedom to partake of marijuana in a state where it's legal extends only to U.S. citizens – legal residents or visa holders who are found to have consumed marijuana can face penalties like jail time or even deportation. What should you do if you find yourself facing charges for an action you assumed was legal? Read on to learn more about the disparities in treatment between U.S. citizens and non-citizens when it comes to partaking of marijuana in states where recreational use has been legalized, as well as your options if you find yourself facing deportation for consuming marijuana in a state with legal use.  

How are non-citizens treated differently under federal drug laws?

Although the balance between federal and state marijuana laws is a tenuous one, with marijuana still classified as an illegal and dangerous drug under federal law yet a legally-prescribed medication in many states, most federal officials have stepped away from enforcing marijuana laws against consumers and even small dispensary owners.  

One exception to this policy involves non-citizens. While U.S. citizens are arguably permitted to consume marijuana in a state where it's been made legal (or legally-prescribed), this freedom does not extend to non-citizens – even those who are in the country legally. Non-citizens who admit to marijuana consumption (or are caught in the act) are considered to have committed a deportable crime. In fact, any non-citizen caught selling marijuana – no matter the amount – can be charged with an aggravated felony, even if the same sale would be perfectly legal if made by a U.S. citizen. 

Once a non-citizen has been charged with marijuana possession, consumption, or sale and is taken into the custody of immigration officials, deportation is likely. This is true regardless of the potential negative consequences – separation from your spouse and child, loss of your job, or even a forced return to a hostile country from which you attempted to seek refuge. Many of those who are deported for criminal reasons have only low-level drug offenses on their records. As a result, it's important to seek legal counsel as soon as possible after being detained to preserve your rights.   

What are your options if you find yourself facing criminal or civil penalties for consuming marijuana in a legalized state?  

This is a relatively murky area of immigration law due to the recent decriminalization (or legalization) of marijuana in so many states. Although the U.S. Bureau of Immigration and Customs Enforcement (ICE) issued a formal letter in 2014 stating that marijuana-related crimes would no longer be considered a priority, those who partake in marijuana are still being deported on a regular basis. If your attorney is able to act quickly, he or she may be able to postpone your deportation hearing and build a stronger case.  

If you've already been deported (or are scheduled for deportation) but have family members, business interests, or other pressing reasons to return to the U.S., you may be able to apply for an inadmissibility waiver. If you're approved, this waiver can allow you to be legally admitted into the U.S., even with a criminal record; although the waiver has an expiration date and you'll need to continue reapplying to remain "legal," it should allow you to live and travel freely in the U.S. until its expiration. 

For help with fighting any felony drug charges, contact a felony defense lawyer like John McWilliam, PLLC.