Marijuana Possession no longer automatically an Aggravated Felony for immigration cases
Even today, despite rapidly liberalizing drug laws, Marijuana possession is often treated as a felony offense in many places throughout the United States. As such for many years this acted as a particularly nasty trap for immigrants caught up in the criminal justice system.
State and local prosecutors, not wanting to clutter the prisons with non-violent drug offenders but not willing to simply dismiss the charges entirely, would often offer deals for suspended sentences, probation, or fines in exchange for a plea of guilty of possession.
But because simple possession is often treated as a felony offense in many jurisdiction it has been typically treated as an aggravated felony by the Immigration Courts. Having an Aggravated Felony on your record makes you immediately deportable, prevents you from using most defenses to deportation and prevents you from returning to the United States except for very rare exceptions. This means that a plea to simple possession of even a small amount of Marijuana has been enough to bar many otherwise law abiding immigrants from their families in United States, often for a lifetime.
However in 2006 in Lopez v Gonzales the Supreme Court ruled that drug crimes would only be considered aggravated felonies if they would have been considered felonies under Federal Law. Under the current Controlled Substances Act Marijuana Possession, in any amount, is considered a misdemeanor offense for first and second offenses and can only be prosecuted as a felony after a third subsequent offense. More recently in Mellouli v Lynch the court also ruled that merely possessing drug paraphernalia is not to be considered a deportable offense without an underlying drug conviction.
If you are an immigrant plead guilty to a marijuana possession charge you may still be able to normalize your status or apply for immigration benefits if you can demonstrate rehabilitation and present good moral character.
We are interested in reviewing your case with you and going over what options you may have available to you. Call today for a free consultation.