(San Francisco, CA)--The Immigrant Legal Resource Center (ILRC) is pleased President Biden recognized the unjust punishment that the federal criminal system has inflicted on people who have used marijuana, and the disproportionate impact on Black people and people of color, and that he pardoned those with federal convictions. However, while the President states his goal is to alleviate “collateral consequences” of a drug conviction, his statement ignores one of the worst collateral consequences affecting communities of color: the cruel and bizarre punishments that are imposed on immigrants in the name of marijuana enforcement.
Further, by selecting lawful permanent residents only to benefit from the federal pardon, and excluding all other immigrants – refugees, asylees, survivors of abuse, undocumented people – the signal is that immigrants are not included. But the Biden administration could take steps now that would alleviate some of the worst immigration abuses.
The immigration penalties for offenses such as possession of marijuana include detention in ICE facilities, with no right to a bond hearing; removal proceedings with no counsel even for detained indigent people; and mass deportations that have permanently separated hundreds of thousands of families.
To resolve the immigration problem, marijuana needs to be taken off federal schedules, and criminalization left to the states. President Biden should support legislation such as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act that passed the House in April and the Cannabis Administration and Opportunity Act currently in the Senate.
But there are several steps the administration could take right now, apart from legislation, to stop some of its own worst excesses against immigrants. Currently the Department of Homeland Security imposes life-destroying penalties for:
- Working lawfully in the legitimate cannabis industry. Immigrants who are lawfully employed in the legitimate, multi-billion-dollar cannabis industry, and paying state and federal income taxes on the employment, are deemed to be “drug traffickers” for immigration purposes – one of the most severe bars in immigration law. No civil or criminal penalties for “drug trafficking” fall on the executives of these corporations, or even any of the U.S. citizen employees; the only enforcement targets are immigrant workers. DHS should withdraw from this destructive and illogical definition of drug trafficking.
- Admitting using marijuana at home, in accord with state law. In states where marijuana is legalized, DHS officials will aggressively question immigrants as to whether they ever have used marijuana, in order to elicit an “admission” of a federal offense. Like the rest of us in states where marijuana is legalized, immigrants assume it is legal to use marijuana. They are surrounded by billboards advertising marijuana and they have no reason to think this is a federal offense. DHS should instruct officers to stop eliciting and using these admissions.
Also, DHS and DOJ should stop aggressive litigation against immigrants who already have post-conviction relief that should eliminate convictions for immigration purposes. There are legal questions about whether a presidential or gubernatorial “pardon” will eliminate a conviction for possessing marijuana for immigration purposes. But all bodies from the Board of Immigration Appeals to the U.S. Supreme Court have recognized that vacaturs based on legal error will eliminate these consequences. DHS and DOJ attorneys should stop aggressively, and often without legal basis, tying up proceedings in this way. The result is that low-income immigrants and over-stretched nonprofits simply cannot pursue the case.
Finally, let immigrants use the post-conviction relief that had effect in immigration proceedings for decades: expungements. DOJ should rescind the administrative holding that rehabilitative post-conviction relief like “expungements” no longer has immigration effect. Expungements are similar to pardons, in that the person must show they completed requirements and have rehabilitated, but expungements are far more accessible.
The Immigrant Legal Resource Center (ILRC) is a national nonprofit that works with immigrants, community organizations, legal professionals, and policy makers to build a democratic society that values diversity and the rights of all people. Through community education programs, legal training & technical assistance, and policy development & advocacy, the ILRC works to protect and defend the fundamental rights of immigrant families and communities. Follow us at www.ilrc.org, and on Twitter and Instagram @the_ILRC