In Illinois, starting January 1, 2020, the recreational use of marijuana becomes legal. Under Federal immigration laws, however, its use remains prohibited. Even though the Illinois law does not expressly provide relief for non-citizens, a relatively unmentioned provision provides a notable benefit to those non-citizens who have disqualifying marijuana convictions in their backgrounds. This short article will discuss, first, what the pitfalls are in seeking any benefit such as legal permanent residency or naturalization from United States Citizenship and Immigration Services (“USCIS”) in relation to use of marijuana and, second, how the new Illinois law opens the door to vacate all disqualifying marijuana convictions, whether for possession or delivery.

Pertinent Federal laws regarding possession of Marijuana. Under federal law the possession of marijuana remains illegal. Under Title 21, Chapter 841, the federal statute simply provides as follows:

(a) Unlawful acts: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

(21 U.S.C. §841) (West, 2019). Marijuana, or “cannabis,” is considered a “controlled substance” under schedule I of the Act. 21 C.F.R. 1308.11(d)(23).

Under the Immigration and Nationality Act (“INA”), possession of marijuana is a disqualifying offense for those who seek permanent residency as well as those who seek naturalization. For those seeking permanent residency, not only a conviction, but also any “admission” to using marijuana could result in a denial. Likewise, for those seeking naturalization, not only a conviction, but also any “admission” could result in being denied naturalization as a failure to have “good moral character” under the INA.

 Legalization of Possession of Marijuana, New Illinois Law P.A. 101-27 (eff. 6-25-19). Illinois prosecutors do not make a distinction between those who are citizens and non-citizens and, therefore, it is unlikely that anyone, whether a citizen or not, will receive a “conviction” for possession of marijuana in Illinois so long as it is less than 30 grams for Illinois residents, and less than 15 grams for non-residents of Illinois. It is also worth noting that not all use of marijuana is legal: (a) it must not be smoked in public, (b) if transporting it in a vehicle, it must be inaccessible during transport, i.e., in the trunk, and in a sealed container, and (c) one cannot be under the influence while driving.

 The problem for non-citizens is that for any arrest USCIS many times requests a copy of the police report even if there was no conviction. USCIS may require an explanation of what happened during the arrest, usually looking for any clues for whether any violence, drugs, or weapons were involved. If USCIS sees in the police report that marijuana was involved and, at the interview, the non-citizen admits to the USCIS officer having used marijuana, although never charged and convicted for it, it would be a basis to deny relief and, depending upon the circumstances, place the non-citizen into removal proceedings. Thus, it is advisable to retain counsel for any applications for permanent residency or naturalization when there is any arrest for marijuana, despite the recent change in Illinois law.

Time to Commence Post-Conviction Proceedings, P.A. 101-27. Under the new Illinois law, those with marijuana convictions for possession under Section 4 or Section 5 of the Cannabis Control Act, may seek to vacate their convictions, apparently regardless of the date of conviction.

The law states very simply:

Any individual may file a motion to vacate and expunge a conviction for a misdemeanor or Class 4 felony violation of Section 4 or Section 5 of the Cannabis Control Act.

20 ILCS 2630/5.2(i)(3). P.A. 101-27. This provision not only allows for the vacature of possession convictions, but also convictions for delivery under Section 5 of the Cannabis Control Act. It is important for non-citizens to understand that mere expungement is insufficient under Federal immigration law – a complete vacature of the conviction, meeting the requirements under Board of Immigration Appeals case law is required to completely erase any conviction, including controlled substance convictions for marijuana possession and/or delivery. Despite the difficulty in meeting these requirements, the most difficult requirement we have encountered is that the person has allowed more than three (3) years to pass from the date of conviction, which subjects the petition to immediate dismissal in the criminal court. Now, however, the new Illinois legalization law has commenced the clock again for criminal judges to review and vacate these convictions. If you are a non-citizen who has a conviction for marijuana possession or delivery in your background, now is the time to discuss with counsel whether you may qualify to vacate the conviction and proceed to ask for either permanent residency or naturalization with USCIS. Depending upon your circumstances, you may have a very short time to do so, but in most cases it would be about 2 years, until the end of 2021.

Driving under the influence of alcohol (“DUI”) convictions have varying degrees of severity for the non-citizen, depending upon the non-citizen’s status in the United States. There are four categories of non-citizens for purposes of considering the effects of a DUI conviction. This article will discuss the consequences, first, for someone here who entered without inspection, i.e., “illegally,” or “without papers.” Second, it will discuss a conviction for those who have overstayed their visas and are thus considered to be “overstays.” In the third category are those who may qualify for Deferred Action for Childhood Arrivals (“DACA”). And, fourth, there are those who have legal permanent residency status. At the end of this article we discuss the best course of action you can take to avoid a conviction for DUI

Without Inspection. For these persons the consequences can be grave. It is our experience that as a result of a DUI, especially someone who lives in the areas outside of Chicago, a person can find him or herself before an Immigration Judge facing removal proceedings as a result of a DUI arrest. The mere occurrence of an arrest is enough in some jurisdictions to get the attention of U.S. Immigration and Customs Enforcement (“USICE”) who process the person to be placed in proceedings before an Immigration Judge, called “removal” proceedings. In Chicago, this is typically not the case unless the person gets a sentence of confinement to jail.

Many people who have been here for a long time, in particular over 10 years, can request “Cancellation of Removal for non-Legal Permanent Residents” before the Immigration Court if he or she can show they have a U.S. citizen spouse, child, or parent who will suffer extreme and exceptional hardship if he or she is removed from the U.S. But a DUI conviction makes it very difficult to demonstrate the good moral character required before an Immigration Judge. In other words, an Immigration Judge is not likely going to take a risk that someone who has been caught drinking and driving will not stop doing so and, thus, will not continue put people’s lives in danger. A person in this situation, who has no status, may have a chance to get Cancellation of Removal if the DUI conviction is many years old and the hardship to the U.S. citizen is truly exceptional. Therefore, the lesson to learn here is that if you are in the U.S. without status you should do all that you can to contest the charges in order to get a finding of “not guilty” by the criminal judge or jury or have the case dismissed on a pretrial motion to suppress the arrest.

Many persons without inspection also qualify for the new “Provisional Waiver” program if he or she has a U.S. citizen wife or U.S. citizen son or daughter over 21 years of age to sponsor him or her. Again, a DUI conviction will make this process difficult if not impossible. U.S. Citizenship and Immigration Services (“USCIS”), which processes these waivers, will consider your conviction for a DUI disqualifying if it occurred in the last three years or permanently disqualifying if you have had more than one. USCIS and the U.S. Department of State (which processes the immigrant visas) will find such a person “inadmissible” under the Immigration and Nationality Act (“INA”) as a “habitual drunkard.” Again, the lesson here is that if you have a chance at obtaining status in the U.S. through the Provisional Waiver program you should not accept a plea of guilty to a DUI charge unless you and your attorney are fully convinced that you would never succeed at trial. It has been our experience that many persons have come to us seeking assistance either in Immigration Court or with consular processing only to have their chances ruined by having unwisely pleading guilty to a DUI charge. Again, the lesson is to not have a conviction for DUI.

It has been our experience that a DUI conviction will also make your chances at obtaining “prosecutorial discretion” very difficult if not impossible. Under a new initiative by President Obama several years ago, he authorized the government attorneys to close removal cases if the circumstances of the case indicated that the non-citizen has ties to the United States, e.g., family, business, home, and has a clean criminal record. Although technically a DUI is only a misdemeanor offense, it is enough to become a bar to obtaining prosecutorial discretion. Again, the lesson is to fight a DUI charge if you have entered the U.S. without inspection.

Overstays. For someone who entered the U.S. legally, but has overstayed his or her visa, he or she would likely be placed in proceedings for being out of status if he or she came to the attention by USICE as a result of a DUI arrest. Since persons who entered legally may be sponsored by a U.S. citizen spouse or son or daughter over 21 years of age, in this situation, they do not have the same difficult burden of proof for good moral character as required for someone who entered illegally. For instance, if a U.S. citizen spouse petitions for him or her, a DUI conviction has little consequence in the adjustment proceeding. But, lacking such a sponsor, e.g., not married any longer, then the person would be required to seek Cancellation of Removal for non-Legal Permanent Residents and would face the same burden of proof as a person who entered without inspection as discussed above.

Deferred Action for Childhood Arrivals (“DACA”). For a non-citizen who either entered without inspection or is an overstay, requesting DACA is always an option. The main requirements for DACA are that the non-citizen entered the U.S. prior to turning 16 years of age, was under the age of 31 as of June 15, 2012, and has at least a high school degree or GED. In addition, however, there are bars for criminal offenses. One of those is DUI, which is considered a “significant misdemeanor” barring the grant of DACA.

Legal Permanent Residents. For these persons, a conviction for DUI is really only an inconvenience if you have only one. A DUI conviction is not enough to warrant being placed in removal proceedings, unless there are other exacerbating circumstances, such as death, harm, or extensive property damage. A legal permanent resident can seek to be naturalized even with a DUI in his or her background and USCIS usually will grant Naturalization even if there is a recent DUI. At the same time, however, the grant of Naturalization is discretionary, so if the DUI is too recent, i.e., within the last year, or the person is still on probation or supervision, it is unlikely that the naturalization will be granted until that is completed. Further, if there is more than one DUI, the chances increase that the Naturalization will be denied if the application is within 5 years of the last conviction, but its not always the case if there are other positive factors. The period of time of having to fulfill the requirement for “good moral character” under the INA is 5 years. Thus, if you want to be certain that you will be granted Naturalization and you have more than one DUI, we recommend waiting out the 5 year period from the date of the order issuing the last DUI conviction.

What Can You Do if You Are Charged with DUI? The best course of action is to hire a good immigration attorney to give advice and guide you through the process if you are charged with a DUI, especially if you are not a legal permanent resident. We can recommend and work with good criminal defense lawyers who will be able to explain your chances of winning at trial after reviewing the evidence. There are a multitude of ways to contest a DUI charge, including contesting the accuracy of the breath test or blood test, the accuracy of the field tests, etc. Further, pursuant to our recommendations, the criminal defense attorney may also be able find a way to suppress the arrest for lack of a probable cause to arrest in the first place, e.g., you were not weaving, speeding, or doing anything wrong when you were pulled over.

Conclusion. It is our opinion that those without status, as opposed to those to are legal permanent residents, have too much to lose by improvidently pleading guilty to DUI cases. A plea should be avoided at all costs by hiring a good immigration attorney to work with a good reputable criminal defense lawyer.

We recognize that there is always the risk that by taking a case to trial, and losing, that a DUI defendant will face jail time and, by getting jail time, the defendant will then come to the attention of USICE. On the other hand, when a person pleas guilty and gets only probation the chances are better that it will not result in coming to the attention of USICE since there is no jail time involved. This is the way that prosecutors and criminal defense attorneys work to convince all defendants to plea guilty, i.e., by pointing out that jail time is possible or likely if you contest the case and lose. It is important to keep the following in mind: first, this is not always the case; it varies by jurisdiction and by judge and depends upon whether there is any previous criminal background. A good criminal defense attorney will be able to let you know what might happen in the event you lose after trial. And if the case is outside of Chicago it is likely that even before the DUI case is completed the person has already been placed in removal proceedings by USICE. Therefore, contesting the DUI case and getting jail time is of no consequence to being put in removal proceedings before an Immigration Judge – the worst has already happened, the person has already come to the attention of USICE. Therefore, the lesson to learn here is that a person who has no status should not be afraid to contest their case to the fullest extent possible, especially if he or she was arrested outside of Chicago, where he or she likely has come to the attention of USICE already. And, if in Chicago, the person ought to find out from the criminal defense attorney what may happen if there were a finding of guilty after contesting the case.

For most people, preserving the ability to obtain legal status in the U.S. with all its benefits, both financial and emotional, is worth the risk of few days in jail and would have taken this risk had they known the grave adverse consequences of a DUI conviction.