March 30, 2021, former New York governor Andrew Cuomo signed the Marijuana Taxation and Regulation Act (MTRA), decriminalizing the recreational use of marijuana. The Act’s purpose is to generate additional revenue by opening up new markets for marijuana sales and use. However, one of its most important effects is for individuals who have previously been convicted on marijuana-related charges. For charges that would now be legal under the new law, they have the opportunity to have them expunged.
Effects on Immigrants
With the possibility to expunge prior convictions, immigrants with prior drug convictions may wonder how this may specifically affect them. While New York is decriminalizing marijuana use, it is still a federally controlled substance. Immigration law statutes regarding controlled substances, convictions, and expungements are far more stringent than those at the general federal or state levels.
Conviction for possession of controlled substances is grounds for deportation. There are a few exceptions, such as green card holders convicted on a first-time offense in possession not exceeding 30 grams. Controlled substance charges led to the deportation of over 34,000 immigrants between fiscal years 2007 – 2012. In 2019 alone, ICE arrested more than 67,000 people for drug offenses.Â
Despite concerns, it’s clear that the Act keeps immigrants and the special circumstances that apply to immigration law in mind. Activist and advocacy groups such as the Immigrant Defense Project, the Drug Policy Alliance, and the Start SMART Coalition worked with state legislators on the Act. Together, they ensured that the bill included a path specifically for immigrants to expunge their past convictions. Although requesting expungement is still relatively new, it applies to immigrants as well as US citizens.
Additional guidelines
There is conflict between marijuana decriminalization at the New York state level and its status as a controlled substance at the federal level. This means that immigrants who want to engage in the recreational use, growing, or sale of marijuana must be cautious. Applying for a medical marijuana card or a license to sell marijuana may still affect an immigration case; even though both are legal in New York.
The United States Citizenship and Immigration Services (USCIS), an agency for the Department of Homeland Security (DHS), officially assumed responsibility for the immigration service functions of the federal government. Therefore, USCIS reviews and interprets immigration benefit applications (i.e. green card or naturalization) under federal law.Â
Because of earlier New York decriminalization efforts, individuals can request destruction of their controlled substance conviction records and documents. However, immigrants should be cautious about this, as it can negatively affect their case if expungement proof is destroyed.
By: Tom De Kesel, MRC Immigration Attorney & Ishika Bhasin – October 7, 2021