By Kim Tremblay,
Associate Attorney
On November 6, 2012, Colorado voters approved amendment 64,
a ballot measure that decriminalizes marijuana possession of one ounce or less
for adults over 21 and regulates the cultivation and sale of marijuana. However, it remains unclear how the amendment
will work out in practice; the state must still issue regulations. Currently, some jurisdictions in the state
are continuing to criminally prosecute individuals for marijuana possession
while others are not. Federal law still
considers marijuana a controlled substance and makes it a crime to possess it
or to engage in its production or distribution.
Federal officials have yet to indicate what actions they will take to
enforce federal controlled substance laws related to marijuana in Colorado.
Of specific concern to immigrants is that immigration
matters are regulated by federal law, which has not changed. Under immigration law, there are many areas
related to controlled substances that could be problematic for marijuana users,
producers, and distributors.
For immigrants applying for status, these areas can render a
person inadmissible to the United States, which in turn makes obtaining
immigration benefits either impossible or more difficult. Merely admitting to marijuana possession could
make a person inadmissible; a conviction is not strictly necessary. A conviction for marijuana possession makes
a person inadmissible. In addition, a
person who is a suspected drug trafficker or participant in drug trafficking is
inadmissible. Finally, drug abusers and
addicts are inadmissible to the United States.
Again, discovery of any of these grounds of inadmissibility during the
immigration process could be extremely problematic.
Moreover, immigration law contains consequences for
immigrants with permanent residency status if they are involved with
marijuana. Permanent residents could
have their status revoked and be deported from the United States for a
marijuana possession conviction of over 30 grams, for any other conviction
related to marijuana, or if they are considered drug abusers or addicts.
Presumably, immigrants in Colorado possessing less than one
ounce of marijuana for their personal consumption and legally involved with the
production and distribution of marijuana will not be charged with a crime by
Colorado law enforcement once amendment 64 is implemented. Thus, the lack of marijuana related
convictions makes it less likely that they will face immigration problems in
the future. However, the lack of a
conviction is not necessarily determinative; immigrants involved in some form
of immigration processing determined to be drug addicts or abusers or otherwise
involved with marijuana could face difficulties. Moreover, immigrants could still be
prosecuted by federal law enforcement officials for marijuana related crimes
and then face immigration problems. As
marijuana consumption, possession, production, and distribution are still
federal crimes and related to grounds of inadmissibility and deportation, it is
best to heed Governor Hickenlooper’s advice not to “break out the Cheetos and
Goldfish.”
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