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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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Birthright Citizenship

With President Trump’s recent announcement on his plans to end birthright citizenship through an executive order, questions have arisen in recent news as to both the underlying reasons and the practical implementation of such a declaration.

President Trump asserts that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” While it is true that the majority of the world’s nations do not offer automatic citizenship to those born within their borders, there are at least 30 other countries, including Canada and Mexico, where children born on their soil are granted automatic birthright citizenship. On the other hand, over the past few decades, countries that once did so, including Australia and the U.K., have repealed those policies, with others considering changes.

Children born in the U.S. are granted automatic birthright citizenship through the application of the 14th Amendment’s Citizenship Clause, which states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The application of the Citizenship Clause to children of foreign nationals was addressed by the Supreme Court in 1898 in United States v. Wong Kim Ark, in which the Court ruled 6-2 that a child born in the U.S. of Chinese parents, who at the same time had a permanent domicile and residence in the U.S., automatically became a U.S. citizen. The Court however did not address whether this would extend to children born in the U.S. to parents that were present without valid status.

Although it may not be possible to change the Constitution through a planned executive order, it is within the power of Congress to define the scope of the Citizenship Clause through legislation without amending the Constitution (as long as, of course, it does not run afoul of it). Bills have been introduced from time to time in Congress, challenging conventional interpretation of the clause, albeit unsuccessfully (including the Birthright Citizenship Act of 2009 and Birthright Citizenship Act of 2011). On the heels of President Trump’s announcement, Senator Lindsey Graham stated that he would introduce legislation in Congress to accomplish the objectives of the proposed executive order.

While it is almost certain that there will be strong pushback to the idea of eliminating birthright citizenship, the thought that it could one day become reality brings into the question how this might be implemented. United States Citizenship and Immigration Services (USCIS), the arm of the U.S. Department of Homeland Security that administers the country’s naturalization and immigration systems, would be dealing with a new level of bureaucracy to determine whether at least one parent was in the U.S. legally at the time of birth.

Given the current environment and attitude towards immigration, one may question the policy objectives behind the elimination of birthright citizenship. If the aim is to prevent those granted automatic citizenship after their parents entered without inspection or valid status from receiving benefits as a U.S. Citizen, including someday petitioning for their once-or currently-undocumented parents, how does it address those that come on a valid visitor (or other non-immigrant) visa and do the same? How would this affect parents who entered without inspection or valid status but were later granted valid status through the asylum process? Many questions are left unanswered, and it remains to be seen if and how plans for the elimination of birthright citizenship will proceed.

The United States has long been a worldwide leader, setting examples for other countries, and should continue to do so. The American Dream is rooted in the Declaration of Independence, which proclaims that all men are created equal with the right to life, liberty and the pursuit of happiness. James Adams defined the American Dream in 1931 in his book The Epic of America: “that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement . . . a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.” Thomas Wolfe said, “…to every man, regardless of his birth, his shining, golden opportunity ….the right to live, to work, to be himself, and to become whatever thing his manhood and his vision can combine to make him.” The removal of birthright citizenship, disadvantaging innocent children born here through no fault of their own, seems to fall short of these ideals.

– Michael S. Yu

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Invisible Wall

The term “invisible wall” is a well-known term among immigration attorneys. While the current administration calls for the construction of a physical wall, the administration has already erected an invisible wall which appears to reduce and discourage, not only illegal immigration, but legal immigration as well. While one of the stated goals of the administration is to reduce regulations in order to promote businesses, there is one area where the reverse appears to be taking place. In the field of skills-based immigration law, the administration’s new policies, guidelines, and rules are making it more difficult for American businesses to bring necessary talent to the United States. This is being accomplished through new bureaucratic obstacles and excessive requirements that deter American corporations from bringing engineers, software and computer specialists, and other technical personnel, to the United States. Although the administration is framing these regulations as a necessary measure to protect U.S. workers, the regulations may also reflect a political statement about the administration’s attitude toward immigrants.

The concept of protecting U.S. workers is difficult to argue against, and is a concept many want to enforce. However, one could also argue that there are times where U.S. companies may have a hard time finding available local U.S. employees for highly-skilled occupations, as the U.S. employees tend to be currently employed elsewhere. Or that, even if the talent brought from overseas is occupying a spot that otherwise could be occupied by a U.S. worker, the foreign employee could help enhance the U.S. company’s products, make the company more competitive worldwide, improve exports, help businesses remain viable, and create new innovations and jobs for U.S. workers. Such arguments would also support the concept of protecting U.S. workers.

The majority of reputable studies examining the effects and impacts of foreign workers on the U.S. economy have determined that foreign talent brought to the United States ultimately helps our economy and produces a large number of new jobs for U.S. workers. As anecdotal evidence, some of the largest U.S. entities were, and are, created by immigrants or children of immigrants, for example, Apple or Tesla. Such companies continue to hire many U.S. workers.

The issue with the potential negative consequences of the invisible wall is that its effect will not be seen for years to come, and is slow to materialize.  The administration’s new regulations and policy surrounding immigration may not have a tangible effect on the U.S economy within the next year or two, but would have an effect within a decade or two – long after those who are creating these policies could be held accountable for the decisions they are making today.

The slow materialization of the effects of the invisible wall increases the difficulty of the opposition to the invisible wall, and increases the difficulty for those who may believe the studies which reflect that immigration adds a substantial value to our society and to our economy. The only hope is that more reasonable attitudes will prevail, and the current impediments to immigration (which has been the cornerstone to our society since Independence) are temporary and that our view towards immigration will be restored to its normal, optimistic vision.

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