Now that Phil Murphy has been elected to be New Jersey's next governor, there is much anticipation that marijuana will be legalized in the state within the first 100 days of his tenure. Under State Senator Nicholas Scutari's bill, the possession of and personal use of up to an ounce of marijuana for adults over the age of 21 would no longer be against the law; additionally, people who have been convicted of marijuana related crimes would be able to seek an expungement of those convictions. Public use of marijuana, however, either through smoking or ingestion would still be outlawed. Presumably, this would continue to encompass driving while under the influence of narcotics, pursuant to 39:4-50.
Regardless of what your personal opinions on the subject are, the proposed legislation promises to significantly alter the legal landscape for criminal practitioners within the state. If law, private and personal use of up to one ounce of marijuana will no longer be prosecutable offenses, as they are now under the current law which penalizes possession of less than 50 grams as a disorderly persons offense. However, foreign nationals need to be aware that possession of marijuana-even if legalized-can still have serious ramifications for immigration. Because immigration is a federal matter, state laws do not pre-empt or supersede what is federally proscribed.
Under our federal scheme, drug related crimes can present both grounds of deportability as well as inadmissibility. Being arrested for, accused of, or convicted of a drug offense can potentially implicate numerous immigration issues including but not limited to:
· A controlled substance offense (CSO)
· Crime involving moral turpitude (CIMT)
· Aggravated Felony ("AF")
· "Reason to Believe" one is a Drug Trafficker
· Drug Abuse or Addiction
Furthermore, a non-citizen does not necessarily have to be convicted of a drug offense in order to trigger an adverse determination. As discussed in an earlier blog, there are several grounds of inadmissible conduct that do not require a conviction. Under certain circumstances, the government could theoretically allege that a noncitizen is a drug trafficker or a drug addict even in the absence of a guilty plea/verdict. Furthermore, unlike its deportability counterpart, inadmissibility can be predicated on a conviction or an admission. See INA 212(a)(2)(A)(i)(II).
If anything, this new legislation could unintentionally lull foreign nationals who are casual users into a false sense of security, erroneously believing that if legal in New Jersey, drug use should not present any legal impediments. For example, a lawful permanent resident who travels outside the US and subsequently admits to conduct involving current or past conduct involving drugs before a Customs and Border Protection Officer can potentially find oneself denied entry. Similarly, a noncitizen applying for permanent residence who admits to drug-related conduct can conceivably be denied admission. And even for those individuals who do not travel or already have permanent residence, drug possession and/or use can potentially militate against a finding of good moral character, which is a required component of citizenship. Additionally, it is worth noting that even if a drug conviction is expunged under New Jersey law, it nevertheless exists for immigration purposes and must still be disclosed under a wide variety of circumstances including applications for naturalization and adjustment of status.
Accordingly, notwithstanding potential changes to New Jersey's criminal laws in 2018, noncitizens should be cognizant that there are still federal immigration consequences to drug related conduct. Foreign nationals applying for status as well as lawful permanent residents intending on traveling or applying for citizenship should do their due diligence and consult with immigration counsel before proceeding. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.