The White House announced yesterday that President Biden would grant “full, complete, and unconditional” pardons to U.S. citizens and lawful residents previously convicted of simple possession of marijuana under 21 U.S.C. § 844(a) and D.C. Code 48-904.01(d)(1). The move is intended to “help relieve the collateral consequences arising from these convictions,” and will doubtless help eligible individuals facing bars to employment, public housing, and some other civil disabilities. But because of the Kafka-esque tangle that is immigration law, a presidential pardon may do little or nothing to relieve noncitizen defendants of what is likely the gravest consequences they face from a marijuana conviction—deportation or ineligibility for immigration status. Clients who are eligible for the pardons should be advised that they may still face adverse immigration consequences even after a pardon is granted, and should consult an attorney expert in criminal-immigration issues prior to seeking one. Read on for the gory details.
Restricted eligibility criteria: First, the presidential proclamation limits eligibility to only certain noncitizens—and the limits are somewhat tricky. Pardons are available to people who are currently U.S. citizens or lawful permanent residents (“LPRs”, i.e., green-card holders). But the person must also have been “lawfully present” in the United States “at the time of their offense.” This raises multiple issues:
- Enforcement trap?: It appears someone who was an LPR when the offense was committed, and who is now a citizen, should be eligible. So is someone who is now an LPR, and who was in valid temporary (“nonimmigrant”) status at the time of the offense. But beware—a prior federal marijuana conviction would have made it difficult for someone to become a US citizen, and would have made it impossible to become an LPR without an extraordinary waiver. So attorneys will want to make sure any such client disclosed the conviction and got any necessary waiver in the process of becoming a citizen or LPR before urging them to seek a pardon, as they may be vulnerable to denaturalization and/or deportation or criminal charges for immigration or citizenship fraud if they did not disclose it.
- Who is “lawfully present”? Pardons are not available to people who were undocumented or out of status at the time of the offense (including those who entered lawfully but overstayed their visa). But this is less clear-cut than it seems. The INA defines numerous exceptions to “unlawful presence” for immigration purposes—including people who have a pending application for a green card—but it is unclear whether they would be deemed “lawfully present” for the pardon policy. 8 U.S.C. § 1182(a)(9)(B)(ii)-(iv) (defining “unlawful presence” and exceptions under the INA).
No relief from deportability: Due to asymmetries and absurdities in the immigration laws, a presidential pardon for a marijuana offense may have no meaningful immigration effect. An 844(a) marijuana conviction can make an otherwise lawful immigrant deportable if it involved over 30 grams of marijuana or if s/he has another drug conviction of any kind (including another marijuana conviction for 30 grams or less). Under the statute, a presidential pardon cancels criminal deportability when the pardoned offense is an “aggravated felony” or “crime involving moral turpitude” under the immigration laws. See 8 U.S.C. § 1227(a)(2)(A)(vi). But an 844(a) offense for marijuana is neither—instead, when it triggers deportability, it does so under a separate provision for “controlled substance” offenses. Whether a pardon affects this kind of deportability is unclear. In the view of many courts, a pardon makes no difference. See, e.g., Tetteh v. Garland, 995 F.3d 361 (4th Cir. 2021); cf. Aristy-Rosa v. Att’y Gen., 994 F.3d 112 (3d Cir. 2021) (state pardon irrelevant; reserving the question of the effect of a presidential pardon). So, if the 844(a) makes the client deportable, a pardon at least arguably will not solve the problem. Such clients may still want to seek a pardon, since there are arguments that the pardon should be deemed effective. See, e.g., Aristy-Rosa, 994 F.3d at 116 (noting DOJ OLC opinion that presidential pardon precludes removal proceedings, despite the statutory loophole, as a separation-of-powers issue). But they should not consider themselves safe from immigration enforcement because a pardon was granted, and it is unclear at this juncture whether the process of seeking a pardon might bring them to ICE’s attention. Again, clients should consult expert in criminal-immigration issues.
No relief from inadmissibility: Under another quirk of immigration law, even lawful permanent residents who are safe from deportation because of the “single offense of 30g or less” exception can’t travel abroad without facing the loss of their status and expulsion when they return. This is because the rules for who is “admissible” to the U.S., unlike the deportability rules, don’t contain any exception for a single marijuana possession offense. 8 U.S.C. § 1182(a)(2)(A). Multiple courts have ruled that a pardon has no effect on this “inadmissibility” section of the statute, either. See, e.g., Montesquieu v. Holder, 536 F. App’x 145 (2d Cir. Oct. 24, 2013) (unpublished); Aguilera-Montero v. Mukasey, 548 F.3d 1248 (9th Cir. 2008); Balogun v. Att’y Gen., 425 F.3d 1356 (11th Cir. 2005). Noncitizen clients with marijuana priors should not travel abroad without talking to expert counsel.
No help with citizenship: Say your client with an 844(a) marijuana prior is an LPR (and was one at the time of conviction). She wants a pardon to help her become a U.S. citizen. Will it help? No, and no-one should be applying for citizenship with marijuana priors without consulting a crim-imm expert first. The applicable regulations don’t accord any weight to a pardon for a drug offense, including marijuana. 8 C.F.R. § 316.10(c)(2)(ii). Moreover, if the offense doesn’t meet the “single offense, 30 grams or less” exception, seeking citizenship could be dangerous because, as noted above, even a pardoned offense probably still makes her deportable—her application could be denied, and she could be put in removal proceedings. And if the 844(a) does meet that exception, making it safe to apply, the conviction is not supposed to operate as a bar to citizenship under the statute and regulations. It can’t be repeated too often: clients with past convictions should consult an expert crim-imm attorney prior to seeking citizenship and/or a marijuana pardon.