[Editor’s Note: HIGH TIMES wishes we could offer sanctuary smoking seshes for all of the pot-loving undocumented stoners and MMJ patients out there. Unfortunately, that’s just a pipe dream (pun most definitely intended); but while we can’t get you high, we can still expand your mind. Education is one of our most powerful weapons, so please share this guide with everyone and anyone you know who might be affected under the Trump administration’s deportation policies.]
Even though marijuana legalization is sweeping states countrywide, and recreational usage has also been decriminalized in some states, don’t get too comfortable just yet. You can still be deported, for smoking.
“As of February 25, 2017, 608 aliens in ICE custody have a marijuana-related offense listed as their most serious criminal conviction,”Jennifer Elzea, acting press secretary for ICE (U.S. Immigration and Customs Enforcement), told HIGH TIMES. “ICE notes that marijuana-related offenses cited include, but are not limited to, the possession, selling, and smuggling of marijuana.”
Under President Obama, priority for deportation was targeted towards individuals who committed serious criminal offenses. Law enforcement tended to look the other way for undocumented immigrants, who hadn’t committed any other crimes. While that wasn’t the law, many interpreted a relaxed tone of enforcement.
In the Trump era, the actual policies are not only being enforced, they are being expanded upon. People are getting nervous. There’s a new sheriff in town.
On January 25, the White House issued an executive order regarding their “enforcement priorities for removable aliens”.
Christina Xenides, immigration attorney at Youman, Madeo & Fasano, LLP in New York, theorized, “Obviously, these are really interesting times. We are waiting to see how things are going to be implemented, and how far DHS (Department of Homeland Security) is going to go.”
There have been a few policy memos released on how to practically enforce the orders that President Trump set forth in January.
On February 17, DHS Secretary John Kelly issued a memo, which outlined an implementation plan for Trump’s Executive Order entitled, “Enforcement of the Immigration Laws to Serve the National Interest.”
Meanwhile, the status of former President Barack Obama’s DACA kids (Deferred Action for Childhood Arrivals program, which provides protected status to kids who were brought to the U.S. illegally) is still up in the air.
Kids, like Josue Romero. Josue was picked up by local police in San Antonio, Texas, for smoking a joint in a park and transferred to ICE. ICE threatened him with deportation, but he was later released, without explanation.
The intimation was that he was probably let go because of his protected DACA status; however, his background check had to run its course.
An ICE employee who spoke to HIGH TIMES on the condition of anonymity said, “There hasn’t been a clear directive on where Trump wants to go with this yet, so they just released him.”
Xenides further clarified: “Initially, we were all fully expecting that DACA was going to be revoked completely, based on what Trump was saying during the presidential campaign, but what we have seen so far has been consistent with the previous administration’s policy. DACA applications are still being approved. DACA applicants are still being granted advance parole to travel, even though we are not recommending that, because it is risky. We have been advising our clients not to take trips since Trump took office.”
Considering Josue was found in possession, he could have been placed in removal proceedings very easily. He was lucky. Possession of 30 grams or less of marijuana is considered an offense, which makes someone who doesn’t have status (e.g., is not a green card holder or a citizen) “inadmissible,” and a perfect candidate for removal proceedings.
‘Removal’ is what Congress has called ‘deportation’ since 1997.
Scarier still, under President Trump’s new enforcement policy guidelines, anyone who is undocumented, who has been charged with any offense, or suspected of committing an offense they have not been charged with, is a candidate for removal. Minority Report, personified.
In a legal system which was founded on the belief that all persons accused of a crime are “innocent until proven guilty,” these measures conclude anyone who is undocumented is guilty, if accused, or even suspected of, committing a crime.
Undocumented individuals, with pending criminal cases that could be potentially resolved in their favor, are a priority for removal—before their cases even have a chance to be resolved. Due process has been removed.
Technically, a person could get deported for smoking a joint, not possession, but smoking. Smoking marijuana is a class B misdemeanor in non-legalized states. If a person has had another misdemeanor in the past, then accruing two misdemeanors is considered guilty of two “crimes involving moral turpitude,” and is subject to deportation.
Aside from someone who has a medical marijuana license card, or is a citizen who resides in a state where recreational marijuana has been decriminalized, “anyone who doesn’t have status, regardless of whether or not they are carrying a joint, is immediately subject to removal in this climate, under the new broad sweeping scope that has been outlined,”Xenides explained. “We haven’t seen it put into practice yet. We are waiting to see how ICE enforces what has been outlined.”
There is also the issue of “expedited removal.”
If, for example, someone gets swept up in an ICE or DHS raid, even if they weren’t the intended target of that raid, and they have no criminal history, they are still subject to deportation. Unless they claim they have a fear of returning to their native country and possibly have a basis for asylum. If they can’t prove they have resided in the United States for more than two years, or they don’t have any proof of status or legal entry into the country, ICE can deport them immediately—without even placing them through proceedings.
This is not a new law that Trump has enacted. The Immigration Nationality Act has been in place for decades, but it hasn’t been enforced for years (except at the border).
President Trump’s executive order expands the use of expedited removal. “Expanded use of expedited removal” means literally anyone in the United States who comes into contact with ICE—and cannot prove they have been a resident for more than two years—is subject to immediate removal.
So what can you do to prevent being picked up by the law?
The simplistic answer is, do not break the law, especially if your legal status is questionable. The issue of fairness aside, undocumented individuals have to be more hyper-vigilant than their naturalized counterparts. Do not risk drawing unnecessary attention to yourself.
If you’re driving over to your buddy’s house to smoke a joint, make sure your car insurance is up-to-date, make sure your brake lights go on and stop at yellow lights. An ounce of prevention is worth a pound of cure.
Sometimes people are arrested for one thing, as a pretext for law enforcement fishing for evidence of an entirely different crime. This could have been the case with Josue. However, had he not broken two laws: 1) being in the park after hours and 2) smoking a joint in the park, his ordeal probably would not have occurred. Don’t put yourself in the wrong place at the wrong time.
Be careful of what proof of identification you are carrying.
Under President Trump’s enforcement priorities, anyone who has obtained false documents, such as a driver’s license from a state they do not reside in, or a false social security number, is also a priority for removal. Do not under any circumstances carry, or present, false documents to the authorities. Do not carry pay stubs, if you are working without authorization.
“We have been advising our clients without status, to carry some sort of proof that they have been in the United States for more than two years,”Xenides said. “That way, if they are picked up, they will be placed in removal proceedings. They will have a chance to go before a judge and will not just get immediately put on a plane. We are also advising our clients not to carry their passports on them. Don’t make it any easier to get removed.”
A three-year-old utility bill in your name, which shows proof of your address, is a safe thing to carry on you at all times.
How law enforcement will react in any given situation has many mitigating factors.
Basic considerations are: the time and place the situation has occurred, the seriousness of the crime, the climate of the current regime and even the mood of the arresting officer. Needless to say, when encountering law enforcement, be compliant and be courteous, but do not get nervous and over-share.
Ask to speak to your lawyer as soon as possible, and do not answer any questions, without your lawyer present.
If ICE agents come knocking on your door, they are not allowed to enter your house without a search warrant, signed by a judge, with the specific name of the person they are looking for. If they actually have a search warrant, ask them to slip the warrant under the door, so you can read and verify it. Photograph the warrant, and picture text it to your lawyer immediately, especially if you are unsure of its contents.
If you are not the person indicated in the warrant, you do not have to answer the door. If you do, you are opening yourself up to a raid and putting everyone else in your home at risk.
Daniel Ramirez Medina was caught up, when ICE raided his home in Seattle. The intended target was his father. Daniel is currently still in detention. His DACA status has been terminated, and he has been placed in removal proceedings.
“Gang affiliation” was ICE’s basis for detaining him. Daniel asserts that his written statement said he is not affiliated with, or a member of any gangs. Daniel’s attorneys allege that ICE manipulated Daniel’s statement to appear as if he was confessing to, rather than refuting, those accusations.
It is not advisable to write anything down, or sign anything, without your lawyer present.
Even if you are telling the truth, do not defend yourself, by yourself. Giving a statement to the authorities is always voluntary. You do not have to write or say anything, regardless of the situation. Your attorney will know what succinct language to use, so the veracity of your statement cannot be manipulated or misinterpreted.
According to an ICE official, “As an agency, ICE is charged with administrative civil detention, meaning that ICE cannot hold individuals for punitive reasons. Individuals who come into ICE custody can only be detained in furtherance of their removal proceeding or to affect their removal from the U.S. after a final order of removal from a federal immigration judge. ICE makes custody determinations in accordance with U.S. law and DHS policy.”
Removal is not merely a looming threat for those who are undocumented.
According to Nina Bernstein of the New York Times, “For legal immigrants, zero-tolerance policies have been magnified retroactively: an old conviction punishable by a year or more in jail is grounds for deportation, even if no such sentence was imposed.”
Unfortunately, being ignorant of the law will not excuse you, if you violate it. Make sure you know how marijuana is classified, in your state. Be aware that even if it is legal in your state, it is still a federal offense*.
The law is not something to take for granted. With time and grass roots effort, laws can be changed. Only five years ago, legalization was a pipe dream. Legalization and decriminalization are sweeping the country. In the meantime, stay out of trouble, and let your voice be heard.
*According to the ACLU, marijuana arrests now account for over half of all drug arrests in the United States. Of the 8.2 million marijuana arrests between 2001 and 2010, 88 percent were for simply having marijuana.
Of the 1,488,707 arrests for drug law violations in 2015, 83.9 percent (1,249,025 arrests) were for possession of a controlled substance. Only 16.1 percent (239,682 arrests) were for the sale or manufacturing of a controlled substance.
According to the New York Police Department’s (NYPD) CompStat Report, narcotics related arrests—which include arrests with charges anywhere between Class A misdemeanor, criminal possession of a controlled substance in the 7th degree (PL 220.03.00) and Class B felony criminal sale of a controlled substance in or near school grounds (PL 220.44.99)—were 34,175 in 2016 and 37,763 in 2015.
Whereas according to ICE, “The statistics aren’t broken down into specific drugs, or drug convictions. The number of people with drug-related offenses includes all drugs, possession, distribution, etc.”
RELATED: The Ultimate Marijuana FAQ
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