Criminal Defense Attorneys Experienced with the Marijuana “Personal Use” Exception for Avoiding Immigration Consequences
Representing a person who is not a United States Citizen on a controlled substance offense presents a special and complex set of challenges for a Michigan criminal defense attorney. Unfortunately, there are dire consequences to a controlled substance conviction for an alien living in the United States and most criminal defense lawyers have no idea how to protect clients in this situation. The criminal defense attorneys with LEWIS & DICKSTEIN, P.L.L.C. have vast experience successfully representing and protecting clients from deportation who are living in the United States on a visa or green card.
To better understand this blog regarding the Marijuana “Personal Use” Exception, it is important to understand some basic terms:
- Alien – An Alien is a person in the United States who is not a citizen of the United States and who has not acquired citizenship by naturalization.
- LPR – A Lawful Permanent Resident (LPR) is an alien who has been granted the right by the USCIS to reside permanently in the United States and to work without restrictions.
- Green Card – All immigrants are eventually issued a “green card” (USCIS Form I-551), which is the evidence of the alien’s LPR status.
- Nonimmigrant – A nonimmigrant is an alien who has been granted the right by the USCIS to reside temporarily in the United States.
- Nonimmigrant Visas – A nonimmigrant visa allows a nonimmigrant to enter the United States in one of several different categories, which correspond to the purpose for which the nonimmigrant is being admitted to the United States.
- Immigrant Visas – An immigrant visa is a document issued by the United States that allows a person to travel to the United States and apply for admission as a legal permanent resident (LPR)
The Law – Marijuana “Personal Use” Exception
Any alien who at any time after admission has been convicted of a violation of a controlled substance offense is deportable. The sole exception to that rule is that an alien convicted of a single offense involving personal possession 30 grams or less of marijuana, is not deportable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
Not So Fast! The Law is More Complex Than it May Seem
Despite the fact that the Marijuana “Personal Use” Exception exists, the exception is not always automatically applied, it is commonly misunderstood and immigration courts have found many ways to find an alien deportable even though his or her only conviction involved personal use marijuana under 30 grams. For example, in Flores Esquivel v. Lynch (5th Cir. Oct. 1, 2015), the immigration court found that such an offense disqualified a noncitizen from cancellation of the removal process because his offense included an additional element of being within 10,000 feet of a school. The 5th Circuit reversed and found does it not include an additional requirement that the offense also be the “least serious” drug offense under the law of the state in which it was committed
The vast majority of criminal defense attorneys are totally unaware that even though a defendant may qualify for the Marijuana “Personal Use” Exception, he or she may still be deportable if it is determined that the person is a “drug abuser” or an “addict.” A presentence report in a misdemeanor case may prove to be critical in a deportation proceeding if such a finding is made.
In Michigan, a conviction for possession of marijuana is a 1-year misdemeanor but it does not include an element in the law specifying the number of grams possessed (for example, less than 30 grams). Deportation proceedings can be mistakenly commenced upon a misdemeanor conviction for marijuana in Michigan if the lawyer does not know how to convince the judge and prosecutor to include that the amount of marijuana possessed was less than 30 grams in the Judgement of Sentence.
There is more, much more. A case that may seem simple often is considerably more complex than an inexperienced criminal defense lawyer may understand. This is why it is so important to have the best, most experienced criminal defense lawyer by your side.
Michigan Criminal Defense Attorney – We Can Help You
The criminal defense attorneys with LEWIS & DICKSTEIN, P.L.L.C. have decades of experience defending citizens and non-citizens of the United States on felony and misdemeanor charges throughout Michigan and in federal court. When the stakes are high and there is no room for errors and false promises, it is time to call us for a free consultation. You can reach a seriously experienced criminal defense lawyer by calling us at (248) 263-6800 or by completing a Request for Assistance Form.
“We are not afraid to win!”
– Lewis & Dickstein, PLLC