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Friday, September 22, 2017

There have been considerable changes in state laws relating to the possession and use of marijuana. Recreational use of marijuana is now legal in states including Alaska, Colorado, Oregon and Washington. In addition, medical marijuana is legal in over 20 states, including such populous areas as California and New York. More changes in state law regarding marijuana are heavily anticipated.

The federal law, however, relating to marijuana has not changed a bit. It remains a Schedule 1 substance under the Controlled Substance Act along with LSD and heroin, which are all defined as illegal drugs under 21 USC Section 802 for federal purposes.

Indeed, because immigration law is part of federal law, the question remains if offending noncitizen immigrants will legally survive and remain in the United States. Typically, according to federal law, they are promptly deported from this country if caught possessing, using or selling marijuana while here. Immigrants with prior marijuana-related offenses may even have a hard time coming to this country to begin with.

The experience of Wildes & Weinberg’s founding partner Leon Wildes, Esq. in representing former Beatle John Lennon in deportation proceedings was a very rare exception to the rule. Wildes guided Lennon, who allegedly had a marijuana offense before coming to the United States, to ultimately succeed in the case after five years of intense litigation, resulting in the granting of lawful permanent residence status to Lennon. See “John Lennon vs. The U.S.A.: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History.”

Notwithstanding the positive results of the Lennon case, it is clear that a conviction of marijuana possession or sale by a noncitizen of the United States will result in deportation. The only statutory eligible waiver available for convictions of simple possession of marijuana requires that the possession have been less than 30 grams of the substance. In such limited circumstances, a waiver can be requested.

Many questions remain, however, as to how state marijuana reform will eventually effect foreign nationals in the United States. Should foreign nationals be subjected to such serious proceedings when the drug is now legal for medical and recreational purposes on a more general basis than ever before? Will the more liberal stance being taken on marijuana eventually effect federal law and particularly the deportation likelihood of noncitizens? Will foreign nationals continue to be inadmissible to the United States for marijuana-related offenses? Will they continue to be deportable for an offense in the United States? What position should the federal government take?

The courts will continue to opine as the law of the land evolves. With all of these moving parts, however, immigration will still continue its enforcement and prosecutions. Yet, there is still hope. John Lennon, a dreamer, with Wildes’s help, was successfully granted lawful residence in the United States despite the allegations made against him. But for now, federal law has still not changed, so smokers beware!

This article is based on information available as of its publication and is not intended to be all-inclusive or to furnish advice in a particular case. We are not responsible for any changes in regulations that may occur subsequent to publication. Please feel free to contact our office for further information and advice.

Michael J. Wildes is the Managing Partner of Wildes and Weinberg, P.C. Mr. Wildes is a former Federal Prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Mr. Wildes has testified on Capitol Hill in connection with anti-terrorism legislation and is internationally renowned for his successful representation of several defectors who have provided difficult-to-obtain national security information. He is frequently a legal commentator/analyst for network television and radio. He is an Adjunct Professor of Business Immigration at the Benjamin N. Cardozo School of Law in New York. From 2004 through 2010, Mr. Wildes was also the Mayor of Englewood, New Jersey where he resides. Wildes and Weinberg, P.C. has offices in New York, New Jersey, California and Florida. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.

By Michael Wildes

 Josh Wildes, Director of Communications, Wildes & Weinberg, contributed to this article