A very important crimmigration case came out last week that is of particular interest to residents of New Jersey who recently approved a ballot legalizing marijuana. New Jersey will soon join eleven other states and the District of Columbia which currently legalize cannabis despite its criminalization of its use, possession, and sale under federal law. Under Khan v. Attorney General, the Third Circuit ruled in a precedential decision that the “stop-time” rule was not halted even if the conviction which served to trigger it was subsequently decriminalized and vacated. This is significant because foreign nationals seeking cancellation of removal (the most coveted form of relief in immigration court) must demonstrate a requisite period of continuous residence in order to qualify. However, the clock is stopped anytime the individual commits an offense referenced under 8 USC 1182(a)(2)—a section of the law that encompasses both crimes involving moral turpitude as well as violations of any law related to a controlled dangerous substance.
In this case, the individual was convicted of a marijuana offense that was later vacated due to change in the law, rendering the offense no longer a crime. Mr. Khan unsuccessfully argued that due to this development, the stop time rule should not have been triggered and that he was eligible to apply for cancellation of removal. The Court was not persuaded, ruling that the vacatur had no effect when the offense was committed; and that decriminalization of the statute had no effect on whether the noncitizen was rendered inadmissible due to that conduct. The decision holds that in general, “the immigration consequences of a criminal conviction are typically fixed at the time of conviction and not altered by post-conviction developments in the law.” The Court limits the contours of Matter of Pickering, holding that only convictions vacated due to “a defect in the underlying criminal proceeding” will cease to have the legal effect of a “conviction” for immigration purposes: Pickering does not stand for the proposition that only convictions vacated because of “rehabilitation or immigration hardships” don’t count.
This is particularly relevant now that New Jersey will soon be enacting legislation legalizing marijuana. Non-citizens with previous drug convictions who are facing removal proceedings should consult with both their criminal defense and immigration attorney to assess how upcoming legislation will interact with current caselaw.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.