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Effective Marijuana Reform: Challenging the Constitutionality of Convictions After Automatic Expungement

Marie Mark, Supervising Attorney, Padilla Support Center Immigrant Defense Project

The Immigrant Defense Project has been working as part of the Start SMART New York coalition to ensure that marijuana legalization benefits the communities most impacted by the war on drugs, including immigrants. Thousands of immigrants are deported because of draconian drug prohibition laws at the state and federal level. New York’s marijuana legalization scheme must take into account the unique vulnerability of immigrants given our country’s harsh immigration laws that punish marijuana convictions with deportation, ineligibility for immigration status, and immigration detention.

In this year’s State of the State and Budget address, Gov. Cuomo vowed to seal marijuana-related convictions as part of his plan to legalize adult recreational use of marijuana. Any attempt to erase old marijuana convictions must be crafted carefully to be both equitable and effective. Laws that put the burden of sealing on the individual help far fewer people than are eligible. As a result, advocates are pushing for a scheme that would automatically expunge convictions.

While automatic expungement is preferable to using New York’s existing sealing laws, it must be crafted to ensure immigrant New Yorkers can also benefit. To protect immigrant New Yorkers, marijuana reform legislation must preserve the right to challenge the constitutionality of marijuana-related convictions.

This is so because even after the state ceases to recognize a conviction as valid, it can be used by the federal government as a basis for deportation, denial of immigration status, and immigration detention. Convictions that are vacated solely for rehabilitative or policy reasons or sealed by the state are not eliminated for immigration purposes. Because a wide range of convictions, including marijuana possession, can trigger deportation, lawmakers have a responsibility to understand the staying power of convictions for immigrants when designing criminal legal reforms. Here are a few ways convictions stick in immigration law:

  • A conviction can be used against an immigrant regardless of how old it is.

Statutes of limitations in civil and criminal law generally limit the time during which the government may bring criminal or civil charges against an individual. The immigration law has no statute of limitations. Regardless of how old a conviction is, it can be used as the basis for deportation and other negative immigration consequences.

  • Sealed convictions are regularly used as the basis for deportation, denial of immigration status, and immigration detention.

State efforts to restrict the use of certain convictions in employment, licensing, or other collateral arenas do not stop them from being used as the basis for negative immigration consequences. In many cases, immigrants have the burden of providing the court the outcome of their arrest even if the case has been sealed. In addition, immigration authorities can use sealed convictions as the basis for immigration detention and deportation.

  • A guilty plea or conviction that is vacated due to rehabilitation is still considered a conviction for immigration purposes.

Some courts, particularly problem-solving courts, offer deferred adjudication programs. To participate, people accused of criminal offenses are often required to plead guilty before participating in drug or mental health treatment. The court postpones imposing a sentence while they complete the required program. Compliance with the court’s requirements results in a vacatur of the plea and reduced conviction or outright dismissal.

However, even when the court vacates the plea based on successful compliance with the court order, the original guilty plea remains valid for immigration purposes. The same is true for convictions that are vacated years later for rehabilitation reasons.

  • Blanket vacaturs do not erase convictions for immigration purposes.

Immigration adjudicators only recognize state vacaturs based on a constitutional or legal defect in the original proceeding. Blanket vacaturs based on state policy or other concerns not individualized to the immigrant’s circumstances are not recognized as valid for immigration purposes. If a conviction is vacated in this manner, it may become difficult or impossible for courts to take further action that would be impactful for immigration purposes.

  • Lawmakers must ensure a continuing right to challenge the constitutionality of convictions.

A truly equitable and effective marijuana expungement scheme will ensure that New Yorkers never lose the right to challenge the constitutional or legal validity of their conviction, which is the only way a state conviction can be erased in the immigration realm. New York’s marijuana prohibition has separated thousands of immigrants from their families and communities. A marijuana expungement law that denies immigrants the right challenge convictions in a way that would be effective under the immigration law will only continue that devastation.

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