Immigration law is complex and requires an experienced attorney to examine any potential problem relating to marijuana use.  The good news is that a person cannot be deported from the U.S. for Possession of Marijuana as long as the amount does not exceed 30 grams.  However, a conviction for any other type of marijuana offense other than simple possession of 30 grams or less requires mandatory deportation.

INA § 237(a)(2)(B)(i) provides as follows:

Any alien who at time after admission has been convicted of 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), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable.

The definition of “conviction is found at 8 USC § 1101(a)(48)(A).  Under that section, 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 –

1. 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

(ii)   the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

That does not end the inquiry, however, as there is another statute relating to a person’s admissibility that is problematic.

8 U.S.C § 1182(a)(2)(A)(i)(II) sets forth looser standard for “inadmissibility” than the standard explained above for a “removability” and provides in pertinent part as follows:

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… a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),is inadmissible.

Unlike an admission/conviction required in connection with removability, the type of admission leading to inadmissibility described in the above statute does not have to occur in open court or before a judge or jury.

In addition to making an alien inadmissible, an admission to a controlled substance offense also makes that person ineligible to adjust status (for example, through an immediate relative or spouse).  8 U.S.C. Sec. 1255(a) provides that persons must be “admissible” in order to be eligible to adjust his/her status to lawful permanent residence.

Furthermore, there is no waiver of inadmissibility or other grounds of relief for a person who has admitted to committing a controlled substance offense other than simple possession of 30 grams or less of marijuana.

The important question is, therefore, what constitutes an admission to “committing acts which constitute the essential elements of…a violation relating to a controlled substance”.

Case law establishes a strict standard for determining what statements can be considered admissions to a criminal offense for immigration purposes.  Forty years of precedence have made is clear that the mere admission of criminal activity is not enough to establish inadmissibility.  The law enforcement officer must use lawful means to obtain admissions that will be legally sufficient to support the charge of inadmissibility.  The admissions must be voluntary and unequivocal.  The admissions must, by themselves, constitute full and complete admission a controlled substance offense.

In Matter of K, 7 I&N 594, 597 (BIA 1957), the Board of Immigration Appeals held that before an alien can be charged with inadmissibility due to admitting the elements of a crime rendering an alien inadmissible, the alien must be given the following: 1) an adequate definition of the crime, including all essential elements, and 2) an explanation of the crime in understandable terms.  The Board noted that these rules “were not based on any specific statutory requirement but appear to have been adopted for the purpose of insuring that the alien would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime.”

Based on the above, a proper means of obtaining an admission might go something like this:

Q. A few minutes ago you told me that you tried marijuana here in the United States.  Did you in fact tell me that?

A. Yes

Q.  In order to possess that marijuana you had to actually have it in your possession, correct?

A. Yes

Q.  This wasn’t an accident, you knew you had marijuana in your possession, correct?

A. Yes

Q.  Do you admit that on [date] you knowingly possessed marijuana?

A. Yes

Q.  And this possession took place in the United States?

A. Yes

Of even greater concern is a provision in the Immigration and Nationality Act that allows the USCIS to find a foreign national inadmissible where the agency has “reason to believe” that he or she was involved in drug trafficking activity.  8 U.S.C. 1182(a)(2)(C) provides as follows:

CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular officer or the Attorney General knows or has reason to believe–

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

“Reason to believe” is a broad standard that can cause a person to be inadmissible for drug trafficking activity, even where no conviction or admission exists.  If the USCIS feels there is “reason go believe”, that a person is a “drug trafficker” then that person may be declared inadmissible and ineligible for adjustment of status.  There is no review or appeal available.  Many times the USCIS finds “reason to believe” where a law enforcement officer merely submits charges, and regardless of whether those charges were ultimately filed.

If the USCIS discovers that a person was suspected of selling marijuana, then that could provide a basis for a finding of “reason to believe”.