I'm an immigrant with a California marijuana conviction on my record. Can Proposition 64 keep me from being deported?

Posted by Neil Shouse | Dec 01, 2016 | 0 Comments

With President-elect Donald Trump promising mass deportation of immigrants with criminal records, many California residents who are not U.S. citizens and have suffered criminal convictions are (rightly) concerned about their future. But Proposition 64, which legalized recreational marijuana in California, may offer help to those whose convictions were for marijuana-related offenses.

Passed by California voters on November 8, 2016, Prop 64 makes it legal for people 21 and older to possess and cultivate small amounts of marijuana for personal use, and allows people to sell marijuana if they have a state license to do so. It also reduces the penalties for marijuana crimes.

Proposition 64 also provides (in new Health and Safety Code 11361.8 HS) that people who were convicted of California marijuana offenses before legalization can apply to have their sentences reduced or their convictions vacated, if they would be subject to a lesser sentence--or not guilty of a crime at all--under the new law.

This feature of the law is important to all people who have been convicted of marijuana crimes in California--but it may be especially important for immigrants with criminal convictions for marijuana offenses.

This is because all "controlled substances offenses" (other than possession of an ounce or less of marijuana) are deportable offenses under federal immigration law. This means that even legal immigrants like green-card holders and people granted asylum may be deported if they are convicted of a drug crime.

But Prop 64 allows people convicted of certain marijuana offenses that are deportable crimes to have their convictions vacated and sealed because their behavior is no longer a crime under the new law. The most prominent crimes to which this provision would apply are:

  • Cultivation of six or fewer marijuana plants for personal use,
  • Giving away up to around an ounce of marijuana, and
  • Possession of up to four grams of concentrated cannabis.

If I vacate and seal my marijuana conviction under Prop 64, does that mean I will not be deported for the conviction?

Unfortunately, there are no guarantees that vacating a marijuana conviction under Proposition 64 will prevent the federal government from deporting you for the conviction.

This is because federal immigration law does not recognize post-conviction relief that is "rehabilitative" in nature (including common forms of relief like Penal Code 1203.4 PC expungements). It only recognizes vacating of convictions based on a legal defect in the underlying conviction (e.g., your trial was unfair or the judge made an error).

Proposition 64, HS 11361.8, does provide that courts are supposed to dismiss prior marijuana convictions because they are "legally invalid." But it is not clear that federal immigration courts will accept that language at face value. 

That said, immigrants with marijuana convictions that could be eliminated under Proposition 64 should definitely initiate the process of resentencing under that law. Though there are no guarantees, it could help them avoid deportation, for one of the following reasons:

  1. Federal immigration courts may choose to recognize the vacating of sentences under Proposition 64 based on the language in that law; or
  2. More likely, vacating and sealing a conviction may make it impossible for federal immigration authorities to find out about the conviction or produce conclusive evidence that it ever occurred.

Proposition 64 shows that most California voters agree that it would be a good thing to remove the stigma of a criminal conviction from people who were casual users of marijuana--including immigrants who have more at stake than U.S. citizens where such convictions are concerned. Our criminal and immigration attorneys strongly encourage everyone who is eligible for relief under this law to pursue it. 

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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