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Does Legalization of Marijuana in NJ Affect Immigration?

by | Feb 6, 2021 | Criminal Law & Municipal Court, Deportation, Immigration Consequences of Crimes |

Legalization Of Weed In NJ?

With passage of the recent referendum legalizing marijuana in New Jersey, there has been a lot of confusion among non-citizens charged with drug offenses and their exposure to immigration removal proceedings.  At the moment, there appears to be an impasse between the legislature and Governor Murphy as to a final bill.  While the parties are negotiating, Attorney General Gurbir Grewal has implemented an order effectively suspending prosecution of low-level drug offenses.  It is anticipated that at some point, a final bill legalizing marijuana will pass muster and become law.

With all that being said, non-citizens with previous arrests for and convictions for drug offenses can still have significant problems with immigration because regardless of what the State of New Jersey does, the Immigration and Nationality Act (INA) is a federal law that regulates immigration—which is a federal issue. In other words, even if marijuana does become legal in New Jersey, its legalization does not eliminate the adverse immigration consequences of using or possessing it under the immigration code.

Some INA Provisions Relating To Drugs

INA 237(a)(2)(B)  Under section i, any alien who at any 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 dangerous substance (as defined in section 102 of the Controlled Substances Act (21 USC 802), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.  Additionally, under subsection ii, any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.

INA 212a(2)(A)(II)  Under this provision, 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 is inadmissible.

The Controlled Substances Act is a federal statute proscribing the manufacture, importing, possession, use or distribution of regulated controlled substances.  Marijuana or cannabis is regulated as a Schedule 1 controlled substance.

The above are only two-but not the only ones–federal immigration provisions relating to controlled substances.  This does not include offenses that would fall under Crimes Involving Moral Turpitude or Aggravated Felonies, which are independent grounds for either inadmissibility or deportability.

Some Common NJ Disorderly Persons Offenses That Can Still Cause Issues

Convictions, as well as allegations of violations, of some NJ statutes aimed at punishing low-level drug offenses involving marijuana can still have adverse immigration consequences.  Some statutes include but are not limited to:

  • 2C:35-10, Possession, use or being under the influence, or failure to make lawful disposition
  • 2C:36-2, Possession of Drug Paraphernalia
  • 2C:33-2.1, Loitering or Wandering in a Drug Zone
  • 39:4-49.1, Drug possession by Motor Vehicle Operator

Practical Implications

In practical terms, a prior drug conviction or even arrest can still have very real and important ramifications on a foreign national’s immigration status.  The consequences can affect one’s admissibility into the United States; deportability; or securing of naturalization.  If an individual is outside the US, the person may be barred from re-entering the US and even subject to mandatory detention.  If the person is within the US, the non-citizen may be detained and placed into removal proceedings.  Certain drug offenses will also give rise to a denial of US citizenship.  For someone who is not a US citizen, it would be a grave mistake to minimize the seriousness of a drug conviction in New Jersey on the basis that it is no longer against the state law.

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.

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