Increasingly, states and municipalities are adding post-conviction relief for marijuana offenders, as part of marijuana law reform efforts. The basic idea is that someone with a past marijuana conviction can obtain some sort of post-conviction relief, such as a pardon, expungement, or reclassification of the conviction. One immigration issue for the Courts to decide is whether the purpose of a post-conviction relief measure is rehabilitative benefit for the offender, or due to a substantive fault in the prior law. Should it matter? I don’t know, but it does.
Washington State passed such a law this year, SB 5605, which takes effect July 27, 2019. The new law requires Washington State judges to grant requests to vacate misdemeanor marijuana possession convictions that happened before legalization, if the individual was 21 or older.
Here is the key language:
5)Every person convicted of a misdemeanor marijuana offense, who was twenty-one years of age or older at the time of the offense, may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense. A misdemeanor marijuana offense includes, but is not limited to: Any offense under RCW 69.50.4014,from July 1, 2004, onward, and its predecessor statutes, including RCW 69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense under an equivalent municipal ordinance. If an applicant qualifies under this subsection, the court shall vacate the record of conviction.
Other jurisdictions have taken similar approaches. For example, California’s Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act, allows certain felony convictions to be “redesignated” as misdemeanors. Seattle, Washington, and Boulder, Colorado have taken affirmative steps to vacate old offenses. Canada is looking at instituting at a nation-wide pardon process.
Will these post-conviction relief measures help immigrants, facing deportation or in dealing with admissibility issues?
The law on post-conviction relief for non-citizens is complicated—really, really complicated sometimes—but a recent case from the Ninth Circuit Court of Appeals is not promising.
The case, Prado v Barr, No 17-72914 (9th Circ. 5/10/19), considered whether a felony conviction of possession of marijuana for sale still counts for immigration purposes, after being reclassified to a misdemeanor based on Proposition 64.
The Ninth said that “federal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction.” The Ninth said it will recognize the vacate of a conviction for a substantive or procedural defect, based on established law. However, rehabilitation, immigration hardship, and/or equitable relief are not suitable bases for vacating the immigration impacts of an original conviction.
The Court then determined that Proposition 64’s provisions were more rehabilitative than substantive in nature, and so not effective. The Court also held that reclassification—which happened in this case—was a limited expungement, rather than a full expungement, and therefore not a complete elimination of immigration impacts in any case.
The Ninth’s decision may still be appealed for en banc hearing, or to the Supreme Court. The ruling is specific to Proposition 64, but I think it is indicative of how the question may be handled for other state statutes, such as with Washington State’s recently passed law.
Attorneys and their clients facing this circumstance should recognize first that they cannot rely on the state statute for later relief for non-citizens. Also, if seeking post-conviction relief before a state court, the request for relief needs to be carefully considered for it to meet the stringent standards required for relief under immigration law.