A cafe on the Lower East Side in New York advertises the availability of CBD-infused beverages on its menu. – New York NY/USA-March 2, 2019 (Shutterstock)
By Jeanmarie Evelly, City Limits
Earlier this week, New York legalized adult-use marijuana, paving the way for a new recreational cannabis industry in the state that lawmakers say will generate jobs and tax revenue — and put an end to the harms wrought by decades of criminalization, particularly for communities of color.
The Marijuana Taxation and Regulation Act (MTRA) will automatically expunge New Yorkers’ prior marijuana convictions if those offenses would now be legal under the new law, meaning the past charges are “treated as if they never happened” according to the state courts, and won’t show up on a standard criminal history search or be used against someone applying for a job or school.
But for immigrant New Yorkers who are worried about how a past pot conviction might impact their status or put them at risk for deportation, the situation is more complicated. Despite now being legal in 16 states — New York included — marijuana remains a controlled substance under federal law. That means a past conviction, even if it’s been expunged, can still be used as the basis for deportation or detention under immigration law, experts say.
“A conviction can be expunged, but it can still harm you in terms of immigration,” says Marie Mark, director of legal support and resources for the Immigrant Defense Project. “Immigration law has its own definition of conviction, and has its own requirements about when a conviction can be erased — we call it vacated.”
Under federal law, conviction on a controlled substance offense, including marijuana, can be grounds for deportation (with the exception of green card holders who’ve been convicted of a single pot possession charge of less than 30 grams). A Human Rights Watch report found that more than 34,000 non-citizens were deported nationwide for marijuana possession between fiscal years 2007 and 2012.
But the good news, Mark says, is that New York’s cannabis law was crafted with those complications in mind. The Immigrant Defense Project and fellow advocacy groups like the Drug Policy Alliance and the Start SMART coalition worked with state lawmakers to ensure the act includes a procedure through which immigrants can petition the court to vacate their past conviction in a way that will be recognized as valid under immigration law.
The exact steps of what that procedure to vacate past convictions will entail have not been established yet; the new law requires the state’s Office of Court Administration to set up regulations for doing so within 60 days. But Mark says she and other advocates are “very hopeful,” the process will be clear and user-friendly, and the group will be issuing additional guidance once those regulations are announced. State lawmakers, she said, have been “very committed to ensuring that immigrants were included in how can we correct the harm,” caused by cannabis prohibition.
The Immigrant Defense Project has released additional guidelines and advice for how marijuana legalization could impact immigrant New Yorkers. Applying for a license to sell, grow or otherwise take part in a cannabis business, or applying for a medical marijuana card, could still negatively impact someone’s federal immigration case, despite being legal under state law. The organization also advises immigrant New Yorkers to consult with an immigration attorney before requesting the court destroy records of prior marijuana arrests and convictions — an option the state created last year as part of its earlier decriminalization efforts — since it could potentially get rid of the proof they need to show a previous charge was expunged, and could negatively harm their immigration case.