Archive for December 2018

Post-Conviction Relief following Michigan’s Legalization of Recreational Marijuana: A viable Defense to Deportation?

Note: The following is intended as a general overview of the state of the law as of the time of writing and is not legal advice. Because of the complexities of the law in this area, we recommend consulting an immigration attorney before taking any action with respect to marijuana-related convictions. Furthermore, we emphasize that marijuana-related grounds of inadmissibility do not require a conviction, and that possession of marijuana remains illegal under federal law. As such, non-citizens are advised against growing, possessing, consuming, or otherwise taking action with regard to marijuana, even if otherwise permitted under Michigan law. 

As of its approval of Proposition 3 in the 2018 midterm elections, Michigan joins the ranks of nine other states as well as the District of Columbia in legalizing possession of marijuana for recreational use. While hailed as a progressive step towards criminal justice reform, it remains to be seen whether this change will hold similar benefits for affected members of Michigan’s immigrant community. Partially at issue is whether the approved measure would be accompanied by retroactive relief in the form of vacatur or expungement of certain marijuana offenses—offenses which may otherwise result in findings of inadmissibility, removability,[1] or a host of other immigration-specific consequences. House Bill No. 6227, introduced June 12, 2018, would do just that; even then, however, the bill’s benefits might not necessarily relieve non-citizens in the same way it would U.S. nationals. This is because while the proposed legislation could provide a basis to eliminate convictions for criminal purposes, such measures often fail to wipe away the immigration consequences that follow. This is true even for relatively minor convictions, such as those arising from a single incident involving possession of 30 grams or less of marijuana, a circumstance which generally warrants more favorable consideration than most federal controlled substances convictions.[2] To the contrary—it is often the case that criminal convictions, even if pardoned, expunged, or otherwise vacated, may still form the basis for a subsequent removal order.

At the crux of this quandary are two considerations: firstly, that notwithstanding numerous states’ decisions to decriminalize the possession and use of marijuana, these acts remain illegal under federal law, and secondly, that the term “conviction,” as defined in Section 101(a)(48)(A)[3] and referenced in Section 212(a)(2)(A)[4] of the Immigration and Nationality Act, has been interpreted much more broadly than is generally understood in other contexts. As a result, post-conviction relief at the state level does not always terminate the underlying conviction for federal immigration purposes. With regard to vacaturs, for instance, the vacation of a conviction for reasons related solely to rehabilitation or immigration hardships—rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings—does not eliminate the above-mentioned adverse consequences that follow from such a conviction.[5] Measures that have been deemed “rehabilitative” in nature include deferred adjudication or entry of judgment, diversion into rehabilitative programs, the removal of conviction following successful completion of probation, and numerous other alternatives to sentencing.[6] Instead, the decision to vacate a conviction or plea must be for cause, or for reasons relating to a legal or procedural defect in the underlying proceedings.[7] One classic example, at least with regard to plea-based convictions, is ineffective assistance of counsel for the failure to adequately advise the defendant regarding the immigration consequences arising from a guilty plea.[8] Other forms of post-conviction relief that may be effective include a granted writ of error coram nobis, a dismissal of cause nolle prosequi, and other vehicles for determining that a judgment lacks legal validity.[9] Hence, to eliminate the adverse effects of a marijuana-related conviction, any relief obtained must be determined by federal immigration authorities to be justified on the basis of a legal defect arising from the underlying proceedings.

In other jurisdictions that have legalized recreational marijuana, some state and local authorities have taken steps to do just this by providing the option to vacate misdemeanor and other convictions for those previously prosecuted for marijuana possession. Municipal court judges in Seattle, for instance, will vacate the convictions and dismiss the qualifying charges entered between 1996 and 2010.[10] Similar processes are underway even in localities where possession is still technically illegal, as is the case in Manhattan and Brooklyn.[11] While such endeavors generally require an individual to petition the court for relief and may only be available locally, still other states are considering legislation that would automatically vacate prior convictions—as with Section 11361.9 of California’s Health & Safety Code,[12] enacted to amend the provisions previously approved in Proposition 64[13]—to remove the burden from applicants to affirmatively file such petitions. To date, this is the only state-wide vehicle for automatic retroactive consideration of prior criminal convictions. A similar mechanism is under consideration by lawmakers in New Jersey,[14] whereas a ballot measure for automatic expungement recently failed in North Dakota’s 2018 midterm election.[15]

Regardless of the form or process of post-conviction relief, however, all measures must meet one central requirement in order to remove a conviction’s immigration consequences: as outlined above, they must be based on an underlying substantive or procedural defect in the criminal proceedings. For this reason, it is as of yet unclear whether California’s statute, which renders qualifying convictions “legally invalid,”[16] would meet the Board of Immigration Appeals’ (BIA’s) strict requirement that such vacaturs not be rehabilitative in nature. Some commenters have raised the prospect that the BIA might consider, for instance, that the ground of legal invalidity was not in existence at the time of conviction, or that the statute does not identify a specific legal or procedural defect.[17] State legislators considering similar measures to vacate prior convictions, such as those in Michigan, would do well to follow pending developments in this area to inform the drafting of such proposals.

In the absence of any such means in Michigan, at the moment, to vacate prior marijuana-related convictions on the basis of subsequent legalization, the best strategy moving forward is likely to seek a form of post-conviction relief that would render the judgment legally invalid. Such a strategy requires an understanding of criminal law procedures and means for relief, and is perhaps best pursued with the assistance of an attorney specializing in these areas. Procedurally, section 6.508(D)(3) of Michigan’s Rules of Criminal Procedure[18] provides for post-conviction relief for certain qualifying defendants and may serve as a useful vehicle for challenging prior pleas and convictions on substantive grounds. Attorneys pursuing such forms of relief should not only specify the basis for the vacatur in the motion filed, but also ensure that basis is one that would qualify as a legal or procedural defect. For instance, MCL Section 333.7144, which provides for the discharge and dismissal of proceedings for first-time drug offenders upon completion of probation, would not generally be a valid basis for such relief given the statute’s rehabilitative nature. Acceptance of such relief on the basis of a guilty plea may, however, serve as a legal defect for those advised that the completion of such a program would invalidate the conviction for purposes of immigration law.[19] Ultimately, though, the ability of attorneys to attain post-conviction relief for affected clients may soon depend more on the resolution of pending political developments than on the extent of procedural defects.

 

[1] See INA 212(a)(2)(I)(ii), 237(a)(2)(B)(i).

[2] For the consequences of such a conviction in the context of deportation and inadmissibility, see INA 237(a)(2)(B)(i) and INA 212(h) respectively. Because offenses relating to trafficking, cultivating, and repeat possession of marijuana often carry more serious immigration consequences that fall outside the scope of the current discussion, this post will focus narrowly on the future Michigan’s legalization might hold for non-citizens with simple misdemeanor convictions based on pleas to possession of 30 grams or less of marijuana.

[3] The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

  • a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
  • the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

[4] 212(a)(2)(A) Conviction of certain crimes –

  • In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

. . .

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

[5] See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

[6] For an overview of the effectiveness of various forms of post-conviction relief, see Kurzban’s (16th ed.) at 352-354, 366-372.

[7] Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

[8] Padilla v. Kentucky, 559 U.S. 356 (2010); 9 FAM 302.3(B)(4)(k)(1).

[9] See 9 FAM 302.4-2(B)(3).

[10] D. Beekman, “Seattle Court Agrees to Vacate Misdemeanor Convictions Prosecuted before Legalization,” Seattle Times, Sept. 24, 2018.

[11] J. Ransom and T. Pager, “District Attorneys Dismantle Legacy of Tough Marijuana Enforcement,” New York Times, Sept. 7, 2018.

[12] California Health & Safety Code § 11361.9. Under the amendment, the State Department of Justice is required to review and identify past convictions that are eligible for “recall or dismissal of sentence, dismissal and sealing, or redesignation” by July 2019. According to one estimate, 218,000 convictions could be eligible for review under the new provision. See C. Norwood, “California’s New Marijuana Law is a First but Likely not the Last,” Governing, Oct. 1, 2018.

[13] California Health & Safety Code § 11361.8(e) (“A person who has completed his or her sentence for a [qualifying] conviction . . . whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid”).

[14] C. Norwood, “California’s New Marijuana Law is a First but Likely not the Last,” Governing, Oct. 1, 2018.

[15] T. Angell, “North Dakota Marijuana Legalization Measure Fails,” Reuters, Nov. 6, 2018.

[16] California Health & Safety Code §§ 11361.8(e), 11361.9.

[17] See Immigrant Legal Resource Center, “Immigration Impact: The Adult Use of Marijuana Act,” (2016), at 23.

[18] Providing for relief, even for grounds which could have been but were not raised on appeal or in a prior qualifying motion, for defendants demonstrating (1) good cause for failure to raise such grounds and (2) actual prejudice from the alleged irregularities that support the claim for relief. Section 6.508(D)(3)(b)(ii) further define “actual prejudice” to include irregularities that are “so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case.”

[19] See In re Erjon Xhetani, 2018 WL 4611483 (BIA), Aug. 3, 2018 (recognizing that the vacatur was entered as the result of a substantive defect where the respondent “‘pled guilty . . . under the mistaken belief and advice that upon successful completion’ of the terms of deferred adjudication program, ‘he would have no criminal record’ and no longer stand ‘convict[ed] for purposes of US immigration law’”).

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