Federal efforts to ramp up deportations and crack down on cannabis could have profound implications on any noncitizens who grow or smokeâ€”even for medical reasons.
A case now making its way through court is illustrative of the dilemma. Sebastopol cannabis attorney Omar Figueroa is defending an undocumented man faced with deportation for growing cannabis in Northern California.
To defend his client, Figueroa enlisted an immigration lawyer to write a letter to the prosecutor â€œexplaining why a misdemeanor marijuana conviction, which may not have been a big deal in the Obama years, would be a nightmare these days,â€ Figueroa says via email.
Over the past decade, noncitizens were encouraged out of the shadows under President Barack Obamaâ€™s so-called Dreamersâ€™ initiative, while a societal shift toward cannabis acceptance coaxed legacy growers out of the shadows in California and elsewhere.
Now anyone who is a noncitizen and a cannabis user or grower can face permanent expulsion under new directives from President Donald Trump and Immigration and Customs Enforcement (ICE) that call on prosecutors to throw the book at them.
Where Obama pushed for prosecutorial discretion in deference to a humane view of the immigrant experience in Americaâ€”and not tearing apart families in the processâ€”Trump has flipped the call for discretion to a bullhorn urging maximum punishment for the undocumented. Itâ€™s something that could even impact those in the country legally, says Santa Cruz cannabis attorney Ben Rice.
â€œIt would be really easy for any noncitizens to misunderstand Prop 64, which legalized recreational pot in California. Thereâ€™s very little value in it to them. Itâ€™s a trap in that way because few understand that the California law doesnâ€™t protect them from federal prohibition,â€ says Rice, insisting that no noncitizen should tell a border or immigration official that they have ever tried pot. â€œThey donâ€™t even have to be caught smoking, or using, or growing. All they need to do is admit. Just the admission can get them deported or excluded.â€
Figueroaâ€™s client was brought to the United States by his parents as a youth. He is married to an American citizen, has two children with her and was in the process of â€œapplying for his lawful permanent residency,â€ according to a version of the immigration attorneyâ€™s letter.
The client was arrested on cultivation and possession for sale of cannabis, and was offered a plea deal where heâ€™d cop to a single possession charge of over 28.5 grams (one ounce) of pot.
The letter implores the unidentified district attorney to drop the pot charges altogether, since any conviction could lead to his permanent removal from the United States. (All identifying information has been redacted from the letter, including the name of the immigration attorney who wrote it, and the client.)
The letter acknowledges that ICE officials would make the call on any removal proceedings and urges prosecutors to not give ICE anything more to work with as it details the harsh dictates coming from the Trump administration that go beyond established immigration law as it intersects with drug policy.
Under federal drug-scheduling rules, cannabis remains listed as a controlled substance with no medicinal valueâ€”and under DHS rules, any possession of any â€œcontrolled substanceâ€ by a noncitizen is itself enough to prompt a deportation proceeding.
If Figueroaâ€™s client is convicted on drug charges and deported by ICE, his application for permanent residency becomes a moot issue, since â€œin order to be granted residency he must be admissible to enter the United States,â€ reads the immigration-lawyer letter.
â€œThere are three possible grounds of inadmissibility that could be implicated as the result of the disposition of his criminal matter,â€ it continues, and if any apply, he would never be able to be granted residency. Under existing immigration law, any conviction for an offense related to a federally defined â€œcontrolled substanceâ€ would cause him to be permanently exiled from the United States. â€œFor that reason, it is imperative that [he] not be convicted of any of these offenses,â€ the letter reads. â€œIf he were so convicted, even the existence of his citizen spouse would not be sufficient to qualify him for residency. He would be permanently inadmissible.â€
Throw in a couple of executive orders from Trump, and the immigration consequences of even a single count of simple possession â€œwould be extremely dire,â€ the letter continues as it lays out the new Trump push to get prosecutors to participate more forcefully when thereâ€™s an opportunity to deport someone.
On Jan. 25, Trump issued the executive order â€œEnhancing Public Safety in the Interior of the United States,â€ which directs executive federal agencies to execute immigration laws and to make use of all available systems and resources to do so.
The bottom line, says the unnamed immigration lawyer: â€œIt is extremely likely that significant numbers of noncitizens, who previously would not necessarily have been priorities for immigration enforcement, now will be targeted by immigration officials for deportation, or for denial of immigration benefits.â€
Rice, the most well-known cannabis lawyer in Santa Cruz, says he would like to see DAs create a policy similar to one adopted in Santa Clara County six years ago. There, District Attorney Jeff Rosen issued a memo telling his deputies to consider â€œcollateral consequencesâ€ in pursuing charges.
For example, Rice, who knows Figueroa and has worked on criminal cases as well, says that if someone gets charged with a cannabis-related offense, the DA could instead charge them on something that wonâ€™t catch ICEâ€™s attention, like a pesticide infraction. He notes that prosecutors routinely do something similar already; for instance, when someone is facing a DUI charge after blowing a .08 blood alcohol content on a breathalyzer. Often times, the DA will strike a plea deal, bargaining the offense down from a DUI to whatâ€™s commonly called a â€œwet reckless.â€
Neither the Sonoma County nor the Santa Cruz County district attorneyâ€™s offices could be reached for comment by deadline, and the stateâ€™s District Attorneys Association defers all questions to local officials.
In the meantime, immigration groups are counseling noncitizens to keep a low profile, especially around cannabis.
The Daily Cannifornian, an online source of all things pot-related in the state, recently posted a story about the cannabis noncitizen conundrum and reported that the San Francisco-based Immigrant Legal Resource Center â€œadvises non-U.S. citizens not to use marijuana until they are citizens, and not to work in marijuana shops. On top of that, it cautions undocumented immigrants not to leave the house carrying marijuana, a medical marijuana card, paraphernalia, or other accessories such as marijuana T-shirts or stickers.”
Additional reporting contributed by Jacob Pierce.