Immigration Consequences of Marijuana Convictions Are Narrowed

In an opinion released today, Moncrieffe v. Holder, the Supreme Court decided that a state conviction for possession with intent to distribute a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” for purposes of the Immigration and Nationality Act. Therefore, a non-citizen convicted of this crime would not be subject to mandatory deportation, and would not lose eligibility for some forms of discretionary relief from deportation.

To avoid triggering immigration consequences, the conviction must be for sharing a "small amount" of marijuana where no money was exchanged. The Court did not define "small amount," but Mr. Moncrieffe had 1.3 grams of marijuana and this was deemed to be small. The Court urged a "commonsense conception" of the terms involved, and the opinion drew a distinction between sharing marijuana and conducting commercial drug dealing.

This case comes just weeks after the Massachusetts Supreme Judicial Court determined that "social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution." The SJC found that sharing a joint is a civil infraction and not a criminal offense. In two related cases, the SJC found that non-criminal possession or use of marijuana cannot be the basis of a search. The Court also stated that growing one ounce or less of marijuana for personal use only should not be considered a crime.

If you are facing criminal charges related to marijuana, or immigration issues that come from a criminal conviction, please contact our office to see how we could help you.

Marijuana Laws in Massachusetts: Commonwealth v. Keefner

The Massachusetts Supreme Judicial Court (SJC) held in Commonwealth v. Keefner that even though simple possession of marijuana has been decriminalized in Massachusetts, possession of any amount, with the intent to distribute it, remains a crime.

The state's decriminalization of marijuana law was approved by voters in a November 2008 referendum. The law changed the status of the possession of one ounce or less of marijuana from a criminal offense to a civil offense, with a penalty of $100 and forfeiture of the marijuana. If the offender is under eighteen years of age, the youthful offender will have to pay the fine, which may be increased to $1,000, and attend a drug abuse counseling course that must be completed with one year of the offense.

The SJC held that voters intended the decriminalization of marijuana law to exclude from the law's reach "the separate and distinct crime of possession (of any amount of a controlled substance) with intent to distribute." The SJC declined to define the extent of all acts that fall under "distribute" but did explain that prosecution is not limited solely to situations involving a sale of marijuana.

The SJC also held that police officers are not permitted to conduct warrantless, non-consensual searches on individuals they have probable cause to believe possesses marijuana in order to prove the civil offense has occurred.

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