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Immigration Decision Bad for Non-Citizens Convicted of Marijuana Possession

The Board of Immigration Appeals recently issued a decision that will have serious negative consequences for non-citizens convicted of marijuana (cannabis) possession. See Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). The immigration laws in the U.S. make certain non-citizens removable (subject to deportation) if they are convicted of a controlled substance offense OTHER THAN a single offense involving possession for one’s own use of thirty grams or less of marijuana. Section 237(a)(2)(B)(i) of the Immigration and Nationality Act.
This means, if a lawful permanent resident or other lawfully-admitted non-citizen is convicted of possessing any federally controlled substance, other than marijuana they are subject to deportation. HOWEVER, if that same person is convicted of possession of marijuana (cannabis) the government must also prove that the amount of cannabis was over 30 grams, or the person possessed it for something other than personal use (selling it, delivering it, etc.). If the government is unable to prove the person possessed more than 30 grams of cannabis, or possessed it for sale or delivery, then the person is not subject to deportation.
Until recently, many Immigration Judges have required that the government prove that the amount was over 30 grams or not for personal use by using the same documents they use to prove most immigration charges. Those documents include the normal record of conviction, which consists of the judgment, sentence, probation order, indictment or information and a few other documents. Until recently, in most jurisdictions, the Immigration Judges were not using documents such as the police report, or property storage cards.
Now, with the Board’s decision in Dominguez-Rodriguez, the government may use “any evidence that is reliable and probative.” Dominguez-Rodriguez, at 413. This could include the police report, property card, testimony or affidavits from the police officers involved in the case, or they could even try to use the non-citizen’s testimony against them.
This decision makes it more evident than ever that when any non-citizen is being prosecuted for a crime, they should hire an experienced criminal defense attorney who also knows immigration law. Many criminal defense attorneys think they know enough about immigration law to properly advise their client’s about the true and complete immigration consequences of a criminal conviction. However, only a criminal defense attorney who has immigration law knowledge and experience can fully and completely advise a criminal client about the immigration consequences of a criminal conviction.
The experienced criminal and immigration attorneys at Shorstein, Lasnetski and Gihon practice in both the criminal and immigration courts on a regular basis. We have the knowledge and experience in both criminal and immigration law to help you protect your rights in both areas. Call us today.