The Immigration Consequences of Marijuana Convictions

U.S. citizens and noncitizens alike know that convictions for drug possession often have very serious consequences. In recent years, however, the U.S. Citizenship and Immigration Service (USCIS) and its related agencies have reduced or eliminated the immigration consequences for certain marijuana convictions.

Take the following hypothetical case: A lawful permanent resident who has lived in the U.S. for over 20 years wants to apply for U.S. citizenship. She has a decades-old possession charge for simple marijuana possession, and a related charge for possession of drug paraphernalia. Will the possession charge affect her eligibility?

In general, convictions for possession of illegal narcotics can both affect eligibility for admission and invalidate certain defenses to removability. Put another way, someone with a drug possession conviction may not be able to enter the U.S. legally or adjust status while in the country. If they are already present in the U.S. (whether legally or illegally), they may not have any way to avoid removal. A single conviction for simple possession of marijuana may not trigger removability or inadmissibility; however, a conviction for drug trafficking usually will.

Under the Immigration and Nationality Act (INA) §§212(h) or 237(a)(2)(B)(i), USCIS is empowered to waive inadmissibility or deportability for people convicted of a single offense of possession of 30 grams or less of marijuana for personal use. This is called the “personal use exception.”

The personal use exception can also cover an additional conviction for the offense of possession of paraphernalia, even though the INA says that the exception applies to a single offense. In Matter of Davey, 26 I&N Dec. 37 (BIA 2012), the Board of Immigration Appeals ruled that as long as the paraphernalia offense was “adjunct” to the marijuana offense (i.e., as long as the paraphernalia was going to be used to ingest the marijuana that was the subject of the underlying conviction), the convictions would be considered to be part of the same offense, and the personal use exception would still apply.

So, back to our hypothetical case: As long as the permanent resident could prove that (1) her conviction was for possession of 30 grams or less of marijuana, and (2) the paraphernalia for which she was charged was used for smoking that marijuana, she will be eligible for the personal use exception. Notwithstanding any other bars to admissibility, she is eligible to apply for naturalization.

If you have been convicted of a marijuana-related offense and have any questions about how that conviction may affect your status in the U.S., we’re here to help. You can contact us by phone at (206) 578-6963, or via email at info@danielsmithlawoffice.com.


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