Federal marijuana laws are playing a key role in deporting both legal and undocumented immigrants. This practice will likely be expanded in coming years as part of the Trump administration’s crack-down on undocumented or “illegal” immigrants.
As reported by Carrie Rosenblum in a lengthy analysis in the DePaul Journal for Social Justice in the Spring of 2016, there has been massive growth in the “criminal-immigration industrial complex” in recent years. Rosenblum’s article, “What (And Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens” argues that “sub-federal criminal law enforcement has come to play an important role in identifying noncitizens and sorting ‘desirable’ from ‘undesirable’ persons.”
The key agency in this process is the Criminal Alien Program (CAP) in the Department of Homeland Security, which has been relying on non-violent drug offenses for a “significant number of deportations.” The program gives incentives to local police to become involved in federal immigration law enforcement.
Marijuana prohibition has a disproportionate impact on minority populations, even in states that have decriminalized. In many cases, a drug offense can trigger deportations of both legal and illegal immigrants.
The Immigrant Defense Project (cited by Rosenblum) reports that:
“In 2013, DHS deported over 20,000 people with convictions of simple possession of drugs or paraphernalia, and 6,600 people were convicted of mere personal marijuana possession. Over the course of the last 6 years, DHS has deported nearly a quarter of a million people for drug convictions.”
The use of marijuana offenses as a basis for deportation is a complicated issue.
They can be used to refuse entry to the United States, to deport a non-citizen legally in the country or as a vehicle for deportation of an undocumented immigrant. Rosenblum explains, “Marijuana-related conduct can also prevent eligibility for waivers from removability or to avoid inadmissibility grounds.”
The problem is that a “conviction” is grounds for deportation.
Rosenblum explains: “The concept of a conviction is broadly defined, can even include things like a guilty plea where charges are dismissed later, suspended sentences, and probation, violations and infractions.”
Possession of less than 30 grams of marijuana for personal use is grounds for an exception. Furthermore, the personal use waiver does not apply to any traffic-related offense. When it comes to getting into the United States, even conduct related to marijuana use can be used to prevent entry or readmission of a legal resident. If Customs has reason to believe someone is a drug abuser or trafficker, they can deny entry, even if there has been no conviction. A discussion about a medical marijuana card, for example, could be sufficient.
At their discretion, local law enforcement can submit the fingerprint data of arrestees to the Federal Bureau of Investigation (FBI) and other biometric data to Immigration and Customs Enforcement (ICE), which will determine if the arrestee is a priority for deportation. These incidents usually are a result of traffic stops or investigative “Terry” stops (in which a police officer only needs reasonable suspicion, rather than probable cause, to make a search).
“Once the ICE agent declares the arrestee a priority, they notify local law enforcement that they wish to seek transfer of a suspected removable noncitizen,”Rosenblum states. “Because criminal arrests can assist ICE in identifying unauthorized noncitizens, [this program can] result in de facto delegation of some aspects of interior immigration enforcement to sub-federal law enforcement agents. Sub-federal law enforcement agents may use traffic offenses or suspected minor criminal violations to stop suspected noncitizens.”
While state-level reform such as decriminalization or legalization reduces the number of interactions between law enforcement and marijuana users, it can also have the unintended effect of increasing the vulnerability of both legal and undocumented immigrants.
First, it is becoming clear that while arrests have decreased significantly in reform states, racial disparities in marijuana law enforcement have increased in marijuana arrests rather than be eliminated by the new laws. Second, relaxation of penalties in many areas can result in it being less likely that offenders will consult with a lawyer, and thus remain unaware of the potential impact the offense will have on residency status.
Most of the discussion about the incoming Trump administration’s approach to marijuana policy has concerned the clash between state-level legalization and federal law, and to what extent Trump’s nominee for Attorney General, Jeff Sessions, will interfere with state-level legalization policies.
However, given the priority of the immigration issue in Trump’s successful presidential campaign and his objective of deporting as many undocumented immigrants as possible, it is highly likely that the use of marijuana offenses as a basis for finding and deporting immigrants will not only continue but will also be expanded in the coming years.
Previously in Pot Matters: Obama Supports Legalization