It's no secret that the War on Drugs has a particularly crushing impact on marginalized communities, but the immigrant community is particularly vulnerable: often, a minor offense that would ordinarily be of little or no consequence can lead to a life-altering deportation or finding of inadmissibility. Much like the numbers behind incarcerations in general, the number of people trapped in immigration court, a detention facility or having to restart their lives abroad due to a non-violent marijuana offense is staggering, and predictably falls on certain communities. For New York's immigrant community, the StartSmart campaign may offer some badly-needed relief for minor offenses.
Between medical marijuana laws, recreational marijuana laws and an American public whose attitudes have greatly relaxed on the issue, marijuana law enforcement is essentially a joke, and many local governments are legalizing or refusing to enforce. This prevailing attitude can be seen in the decriminalization of marijuana in New York and New Hampshire, the medical marijuana states like Florida and the outright recreational legalization in Colorado and California.
This has not, however, filtered from our culture into the justice system: Since 1996, there have been 70,000 arrests for marijuana by the NYPD alone, making it one of the most common arrests in the state.
An examination of these arrests reveals that over 85% were of Blacks or Latinos, typically from the poorest neighborhoods; minor drug convictions are the leading cause of deportations, with 260,000 people being deported between 2007 and 2012 whose most serious crime was a minor drug offense. This mirrors what we saw in NYC with Stop and Frisk, a policy New York City struggled with for years.
These arrests often results in a minor charge that may mean little more than fine anywhere else (or, in some jurisdictions, nothing), but can lead to dire consequences in immigration law. That is because, while fines and local arrests are often handled by state police through state laws, immigration is handled at the federal level.
For example, an immigrant written up for possessing a few grams in the sanctuary city of New York would likely face a fine, at which point the state of New York’s punishment ends. In federal immigration court, however, this minor drug charge can come up and become the deciding factor in a finding of inadmissibility or deportation.
“For drug charges there really is no rhyme or reason, and I have to tell my clients ‘I cannot advise you to lie, that violates my ethics, but I can tell you that if you answer honestly and have used drugs, they will not allow you into this country and there is nothing I will be able to do about it,’” said an immigration attorney at a continuing legal education seminar a few years back. He then detailed how it took years and thousands of dollars to get a Canadian mother coming down to shop for prom dresses with her daughter allowed back into the country after she admitted to smoking marijuana once in the 80’s as a teenager.
Since then, I’ve noticed that every good immigration attorney, strictly off the record, will tell you what the “right” advice is regarding marijuana and immigration: you never did it unless they have proof, in which case, IF it was a small possession charge you will need a complicated and expensive waiver that can be a bit of a long shot and many attorneys won’t be able to pull off.
“There’s a waiver for manslaughter, so I could get you through to citizenship despite killing someone recklessly or just plain stupidly, but if you got busted with a joint that you are sharing it’s often game over,” said another immigration attorney I worked with when such behavior was an “aggravated felony” for which someone would be automatically deported.
There has been some minor improvements over the past few years, such as the Supreme Court finding the social sharing of marijuana no longer being considered an “aggravated felony.” Despite a few minor developments, however, federal law continues to lag far behind both state laws and popular sentiment. What, then, are some possible solutions?
Looking to the StartSmart campaign's focus, the Marijuana Regulation and Taxation Act (MRTA), would solve many of the above-mentioned issues. For example, the bill would allow adults to possess, purchase, ingest, smoke or grow marijuana; creates a process for the reclassification of marijuana convictions and resentencing of those currently incarcerated for marijuana-related offenses and allows for records of marijuana convictions to be sealed so as to not become an issue before an immigration judge.
This is in addition to the broader benefits of creating a better relationship between communities of color and the police (which increases public safety in general), establishing a regulation and taxation system that mirrors tobacco and alcohol and diverting policing resources to where they really need to be; while it is most relevant to immigrant communities, it becomes a high tide that lifts all boats.
And this high tide is badly needed: when we look at the distribution of consequences of marijuana prohibition, we see a concentrated microcosm of everything that is wrong with the criminal justice system in general and the war on drugs in particular. We see poor minorities under higher levels of scrutiny being unable to afford to defend themselves effectively in court and facing not only tougher criminal sanctions, but also indefinite incarceration at a detention facility, immigration sanctions necessitating years of legal fees and, possibly, deportation or inadmissibility.
For the immigrant community, when you take their concerns in mind, this isn’t a question of drug use, or even of freedoms. Rather, it is about what is most likely to initiate an interaction with law enforcement that could ultimately lead to a deportation, even as contemporary society has largely moved beyond even heavily stigmatizing the same behavior. While we wait for federal laws to become reasonable, this is the Band-Aid NY needs.