NYC Marijuana Possession Post-Legalization ICE Defense

NYC Marijuana Possession Post-Legalization ICE Defense

You’re probably thinking marijuana is legal in New York now,so whats the problem? The reality nobody’s talking about – New York State might have legalized cannabis through the Marijuana Regulation and Taxation Act (MRTA) in 2021, but federal law still classifies marijuana as a Schedule I controlled substance. And when it comes to immigration, federal law is the only law that matters. This disconnect between state and federal law creates a minefield for immigrants that most criminal defense attorneys dont even understand.

The Immigration and Nationality Act Section 237(a)(2)(B)(i) makes any non-citizen deportable for a single controlled substance conviction — except for one possession of 30 grams or less of marijuana for personal use. But it gets complicated. Your case was dismissed? You got an adjournment in contemplation of dismissal (ACD)? The charges were sealed under New York law?

ICE can still use it against you.

Why? Because immigration law has its own definition of “conviction” thats broader than criminal law. Under immigration law, any formal judgment of guilt counts as a conviction, including deferred adjudications where you admitted facts sufficient to warrant a finding of guilt.And it gets worse. ICE has this thing called administrative removal under INA Section 238(b) where they can deport certain non-citizens without ever seeing an immigration judge. If your not a lawful permanent resident and you have an aggravated felony conviction – which can include certain drug trafficking offenses – ICE can issue a removal order from their office. No hearing. No judge. Just a piece of paper saying you have to leave the country.

The only thing you can contest is whether you’re actually the person named in the order and whether the conviction qualifies as an aggravated felony. That’s it. You get detained, you get processed, and within 30 days you could be on a plane out of the country.

New York’s cannabis legalization is creating new vulnerabilities for immigrants who think theyre operating legally. You’ve got green card holders opening dispensaries with state licenses, thinking theyre entrepreneurs living the American dream. But those state licenses, those banking records,those business filings — they’re all evidence of federal crimes. The federal Controlled Substances Act doesn’t care about your New York State cannabis license. Distribution of marijuana is still a federal felony punishable by up to 5 years in prison for a first offense. And for immigration purposes, that makes you deportable and possibly subject to mandatory detention without bond.The really insidious part is how old convictions are coming back to haunt people.

Before MRTA, thousands of New Yorkers pled guilty to marijuana charges thinking it was no big deal — pay a fine, maybe do some community service, move on with your life.

But those convictions from 5, 10, even 20 years ago are now torpedoing naturalization applications, triggering removal proceedings when people apply to renew their green cards, and causing people to get detained by ICE during routine traffic stops. The automatic expungement provisions in MRTA only apply to certain convictions, and expungement under state law doesnt erase the conviction for immigration purposes anyway.

So what defenses actually work? Timing is everything. If you have an old marijuana conviction, you might be able to file a motion to vacate under New York Criminal Procedure Law 440.10. But you cant just file it because you want to clean up your record. The motion has to be based on a legal defect in the original proceedings — like your attorney never warned you about the immigration consequences,which is required under Padilla v. Kentucky.

If ICE already has you in removal proceedings, some immigration judges won’t give you a continuance to go back to criminal court and fix the conviction. They’ll say you had years to deal with it.

Another defense strategy is challenging whether the conviction actually falls under the federal Controlled Substances Act. See, INA Section 237 only makes you deportable for convictions relating to substances listed in the federal schedules. Some synthetic cannabinoids that are illegal under New York law might not be listed in the federal schedules. Your criminal defense attorney needs to look at the exact statute you were convicted under, the language of the plea colloquy, and any lab reports to see if theres daylight between what New York prohibits and what federal law prohibits.This is highly technical stuff that requires coordination between criminal and immigration counsel. And if youre already in removal proceedings,you might qualify for cancellation of removal — but only if you’re a lawful permanent resident whos had their green card for at least 5 years, lived in the US continuously for 7 years, and haven’t been convicted of an aggravated felony.

Its discretionary relief though.

The judge can still say no if they think you don’t deserve it. For non-permanent residents, the bar is higher — you need 10 years of continuous presence, good moral character, no serious criminal convictions, and you have to show your removal would cause “exceptional and extremely unusual hardship” to a US citizen or permanent resident spouse, parent, or child. Not to you – to them. Your own hardship doesn’t count.

Immigration enforcement priorities shift with each administration, and marijuana-related immigration enforcement is ramping up. ICE’s 2023 annual report shows theyre already increasing interior enforcement operations, and sanctuary city protections are getting weaker. New York City used to refuse to honor ICE detainers unless the person had certain serious convictions, but those policies are under constant legal attack.

ICE is getting more sophisticated with data sharing – they can cross-reference state cannabis licensing databases with immigration databases to identify non-citizens in the marijuana business.

If you’re an immigrant with any marijuana involvement: Get copies of all your criminal records, sealed ones too. You need the certificate of disposition, the criminal complaint, any plea transcripts, and any lab reports. If you have an old conviction, talk to both a criminal defense attorney and an immigration attorney about whether you can vacate it. Dont wait until you need to renew your green card. If you’re in the cannabis business, understand youre taking massive immigration risks. That dispensary license might be legal under New York law, but its evidence of federal drug trafficking.

If you use marijuana, stop.

Legal use under state law can make you inadmissible to the United States — CBP can deny you entry if they think your a drug user.

The intersection of New York’s marijuana legalization and federal immigration law is a catastrophe for thousands of immigrants. The state made promises about expungement and fresh starts, but those promises are empty for non-citizens. One marijuana conviction — a violation, an ACD — can destroy your entire life in America. Your kids could lose their parent. Your spouse could lose their partner. Your employer could lose a valued worker. And it’s all because of a plant thats now legal to sell in Times Square.At Spodek Law Group , we’ve been handling these complex marijuana-immigration cases since before legalization. We know how to navigate both the criminal and immigration systems. We know which convictions can be vacated, which cant, and what alternative strategies might work. Once ICE comes knocking, your options shrink. If you’re an immigrant with any marijuana history,your sealed record won’t protect you. New York’s legalization definitely won’t mean your safe. Federal law doesn’t care what New York says, and neither does ICE.