- VULNERABLE The undocumented are already at risk in Trump’s America. Things get dicier with a pot conviction.
The rolling cruelty of Trump's deportation junta has put the double screws to noncitizen cannabis users and growers in the North Bay.
A case now making its way through North Coast court is illustrative of the dilemma. Sebastopol cannabis attorney Omar Figueroa is defending an undocumented man faced with deportation for growing cannabis in Northern California.
To defend his client, Figueroa enlisted an immigration lawyer in late February, just as Trump was laying down the deportation gauntlet, to write a letter to the prosecutor "explaining why a misdemeanor marijuana conviction, which may not have been a big deal in the Obama years, would be a nightmare these days," Figueroa says via email.
Over the past decade, noncitizens were encouraged out of the shadows under President Obama's so-called Dreamers' initiative, while a societal shift toward cannabis acceptance coaxed legacy growers out of the shadows in California and elsewhere.
Now anyone who happens to be a noncitizen and a cannabis user or grower can face permanent expulsion under new directives pushed out by Trump and Immigration and Customs Enforcement (ICE) that call on prosecutors to throw the book at them.
Where Obama pushed for prosecutorial discretion in deference to a humane view of the immigrant experience in America—and not tearing apart families for no good reason in the process—Trump has flipped the call for discretion to a bullhorn urging maximum punishment for the undocumented.
Figueroa's client was brought to the United States by his parents as a youth. The man is married to an American citizen, has two children with her and was in the process of "applying for his lawful permanent residency," according to a redacted version of the immigration-attorney's letter provided to the Bohemian, when he was arrested.
The client was arrested on cultivation, possession for sale of cannabis and was offered a plea deal where he'd cop to a single possession charge of over 28.5 grams (one ounce) of pot.
The letter implores the unidentified district attorney(s) assigned to the case to drop the pot charges altogether, since any conviction could lead to his permanent removal from the United States. (All identifying information has been redacted from the letter, including the name of the immigration attorney who wrote it and the client.)
The letter acknowledges that ICE officials would make the call on any removal proceedings: "The exercise of prosecutorial discretion by the immigration authorities who have to decide whether or not to actually initiate a removal case against someone with only a simple possession conviction is a separate matter."
The danger lies in the new regime's outlook on immigrants from Mexico, which is somewhat less than welcoming. "However, the danger to [him] is high given the new publically stated priorities of the Department of Homeland Security on this matter."
The letter implores prosecutors to not give ICE anything more to work with as it details the harsh dictates coming from the Trump administration that go beyond established immigration law as it intersects with drug policy.
Under federal drug-scheduling rules, cannabis remains listed as a controlled substance with no medical value—and under DHS rules, any possession of any "controlled substance" by a noncitizen is itself enough to prompt a deportation proceeding.
And if Figueroa's client is convicted on drug charges and deported by ICE, his application for permanent residency becomes a moot issue since, "in order to be granted residency he must be admissible to enter the United States," reads the immigration-lawyer letter.
"There are three possible grounds of inadmissibility that could be implicated as the result of the disposition of his criminal matter," it continues, and if any apply, he would never be able to be granted residency:
Under existing immigration law, any conviction for an offense related to a federally defined "controlled substance" would cause him to be permanently exiled from the United States. "For that reason, it is imperative that [he] not be convicted of any of these offenses," the letter reads. "If he were so convicted, even the existence of his citizen spouse would not be sufficient to qualify him for residency. He would be permanently inadmissible."