When George Kidan was a student at the University of Toledo, he helped buy $30 worth of marijuana for a friend — who, it turned out, was working with an undercover narcotics officer. Police arrested Kidan at his on-campus job. He was convicted in 1987 of “trafficking in illicit drugs,” got two years’ probation, and paid $1,070 in fines and restitution.
“I didn’t think much of it,” he said of his conviction. “I figured since I paid my fine and did my probation, I’m good.”
But Kidan is not a U.S. citizen, having arrived in 1981 on a student visa from Kuwait. That meant that years after he completed his probation and moved on, his marijuana conviction could come back to haunt him. And in 1999, it did. He was arrested by Immigration Enforcement Officers from his home in Western New York, locked in detention for months, barred from traveling, and remains in legal limbo — even after the governor of Ohio granted him a full pardon in 2006 for his initial crime.
“It doesn’t make any sense,” Kidan said. “We have two systems here.”
States and cities have loosened their laws on marijuana in the last several years, either legalizing it entirely (as in Alaska, Colorado, Oregon, and Washington) or reducing the penalty for possession to a violation that’s treated like a traffic ticket. But the federal law on how drug convictions affect immigration status remains largely unchanged, and crimes like marijuana possession or sale can still land immigrants in deportation proceedings and federal detention facilities. Lawyers say that as the punishment for pot lessens, many non-citizens are unaware of the sizeable consequences they may face in immigration court.
A report released today by Human Rights Watch found that between fiscal years 2007 and 2012, 34,337 people whose most serious conviction was marijuana possession were deported. An additional 18,151 were deported with a conviction for selling marijuana.
“A lot of people assume...we are just getting rid of drug cartel traffickers,” said the report’s author Grace Meng, senior researcher for Human Rights Watch’s U.S. program. “They’re not imagining permanent residents [or] undocumented immigrants who have been here for 20 years.”
A spokesperson for Immigration and Customs Enforcement did not immediately respond to a request for comment. Under ICE policy released in 2014, those convicted of marijuana possession would not be an “enforcement priority” for deportation. Those convicted of any felony or crimes involving “drug distribution” are higher on the list. The policy “requires [Department of Homeland Security] personnel to exercise discretion based on individual circumstances.”
Caroline Solis, an immigration lawyer with the Neighborhood Defender Service of Harlem, is representing a refugee from Sierra Leone who is at risk of deportation because of a single marijuana-possession violation from 2006. He has legally lived in the country since 1999, but may lose his green card and was placed in deportation proceedings last March, when he re-entered the country after a family trip. At the time of his conviction, “He just went in to court and took the plea. Whoever represented him didn’t tell him that he shouldn’t be traveling based on his marijuana conviction,” Solis said, a common problem among her clients.
In 2010, the Supreme Court ruled in Padilla v. Kentucky that immigrants could claim ineffective counsel if their defense lawyers did not inform them of the consequences of low-level conviction. The decision has made it easier for immigrants to seek deportation relief and raised awareness about how criminal cases should be handled for noncitizens. But the High Court ruled in 2013 that the decision does not apply to convictions before 2010. And in many marijuana possession cases, experts said defendants often do not have a lawyer. Some waive their right to one, thinking the case is as minor as a traffic ticket. Indigent defendants facing misdemeanor charges in many jurisdictions are also not automatically provided a lawyer.
Violeta Chapin, a law professor at the University of Colorado, represented a 19-year-old who had entered the U.S. from Mexico as a child, and was placed in deportation proceedings after police found marijuana in his pocket. Like many others, he did not have a lawyer and simply pleaded guilty. During his detention at a federal center in Colorado, President Obama announced a new program that would shield some undocumented immigrants from deportation if they entered the country before the age of 16. He would have been eligible for the program, despite his single marijuana conviction. But the program did require him to be enrolled in school, which he could not do while detained. He was deported to Mexico.
“If there’s no lawyer, on whose shoulders does it fall on? A lot courts are wrestling with that,” Chapin said. “The judges are very uncomfortable with providing advice from the bench, and they’re equally uncomfortable with people that are undocumented pleading guilty to crimes for which there are immigration consequences.”
Once someone is placed in deportation proceedings, any drug-related conviction can also keep them in immigration detention while their case is decided. Under federal law, anyone convicted of a controlled-substance offense may be subject to “mandatory detention.” Because of the severe backlog in immigration courts, those convicted of drug crimes might spend months or years in immigration detention for crimes that may be punished with far shorter sentences (if any) in jail.
Sunil Soodoo was held in immigration detention for five and a half years as he fought deportation because of a 2005 marijuana-possession conviction. He was ultimately released in February 2013, but his case is pending. His next court date is in 2019. “They took me to Texas, Alabama, Louisiana, New Jersey. They took me everywhere,” said Soodoo, who currently lives in New York. “You think you’ll never come out.”
Some prosecutors are trying to mitigate the effect of the drug laws on immigrants by charging them in ways that are less likely to trigger deportation.
David Angel, an assistant district attorney in Santa Clara County, Calif., said War-On-Drugs-era legislation left immigration judges unable “to weigh the difference between a major drug trafficker and a kid who sold a little pot while smoking a little pot.” When deciding how to prosecute a case, Angel said his office asks, “how can we do it in a way so that what the legislature did not intend to be a life-shattering punishment doesn’t become one?...The fact that the immigration law is pretty baroque and inflexible does have an unfortunate distorting effect.”
Drug crimes can cause problems for immigrants years after the initial conviction. Over a decade after his conviction, Kidan’s life was falling into place. He had a steady job as the manager of a Kinko’s in Buffalo, N.Y. He had just bought his first house and a car. He was engaged. “I thought I was on easy street, things were so good,” he said. Then one day, Kidan left for work to find ICE agents filling his driveway. They took him to an immigration detention center in nearby Batavia. He spent the next 94 days there fighting deportation, before ICE released him because he could not return to his home country of Kuwait. He had previously applied for asylum, but was denied because of his conviction for selling marijuana.
Though released from detention, Kidan remains in limbo. His wife is a U.S. citizen, but he is ineligible for legal permanent status. In 2006, the governor of Ohio issued Kidan a full pardon. But for controlled substance crimes, “the government's position, which courts have upheld, is that the pardon basically has no effect on your deportability,” said law professor Jason Cade of the University of Georgia, who has studied the issue. “As long as you admit to guilt or there’s a judgment by a court and some kind of punishment is imposed, that counts as a conviction for the purpose of immigration.”
Kidan is still under an order of supervision, and must regularly check-in with an immigration officer. Without legal status, Kidan said he has struggled to keep a job in his field, engineering, and was unable to travel to Jordan for his mother’s funeral. “I have no documents, no nothing,” he said. “How long do I have to pay for my crime?”