NYC Sanctuary and Marijuana:
NYC Sanctuary and Marijuana: An Overview
New York has stepped up its game as of late in protecting its immigrant population. In 2017, New York City passed Local Law 228 to protect immigrants from ICE in NYC, while in Albany the state has debated state-wide sanctuary legislation. As New York debates marijuana legalization, one of the most overlooked aspects is how this legislation will affect immigrants. If legislation such as the Marijuana Regulation and Taxation Act (MRTA) were passed, it would greatly limit deportations in New York over marijuana.
While marijuana has become legal for both medicinal and recreational purposes in several states, it is still illegal at the federal level. This is because of federalism, that is, the relationship between the states and federal government.
While federalism is a complex topic, for our purposes it is sufficient to say that federal and state governments are different levels of law, and the federal government cannot tell the states to enforce or enact legislation, i.e. marijuana criminalization or immigration enforcement. This is what is known as the “Anti-Commandeering Doctrine” of the 10th Amendment, and has been upheld in landmark Supreme Court cases like Prigg v. Pennsylvania, New York v. United States, Printz v. United States, Independent Business v. Sebelius and Murphy v. NCAA.
This illegality at the federal level is a problem for immigrants as virtually any violation of state drug law that matches up with federal drug law can lead to a finding of inadmissibility or removability (deportability). While this depends on a federal crime, the vast majority of enforcement takes place at the local and state level. This is because, while the Drug Enforcement Agency does make large busts, the day to day arrests for small amounts of marijuana possession are made by state and local police. These charges are then processed through state and local courts.
Once there is a conviction, plea or admission for possession of marijuana as part of a plea, this information goes into a database accessible to the federal government. While this does not necessarily result in deportation proceedings immediately, it does become an issue when someone attempts to apply for or adjust their immigration status. For those deported in 2014, 6,770 of them had on their record a marijuana possession offense as their most serious offense.
As a defense, for a Legal Permanent Resident (LPR or green card holder), there is an automatic waiver available for one personal possession of 30 grams or less. If, however, 31 grams or more were involved, or if there is a second offense of any amount, the LPR is out of luck. For those with non-immigrant status, such as those on a working visa, however, there is a 212(h) waiver that is available for personal possession of 30 grams or less. These waivers have very difficult requirements to meet, require an attorney to argue and can be denied even if the defendant meets said requirements.
Looking to the enforcement environment in NYC, the city has taken serious measures to not comply with immigration enforcement. Local Law 228 prevents any employee of the city from using their time while on duty or city resources to comply with immigration authorities. This includes ICE detainers and 287(g) requests.
Although Local Law 228 is quite comprehensive, there are public safety exceptions, such as NYC still complying with ICE detainers when one of a list of 170 violent or serious crimes are implicated, or when the individual is on a terrorist database.
On the marijuana front, NYC has changed its policy to issue summonses instead of arrests for smoking in public. This is at least partially a reaction to the fact that around 9 out of 10 arrests for marijuana in NYC were of African Americans or Latinos, and 93% of arrests for low level marijuana offenses were of people of color, taking a particularly heavy toll on NYC’s immigrant communities. While this is certainly a step in the right direction, there is not much of a difference between a summons and arrest from an immigration perspective, and these summonses can still easily end in a deportation.
This policy from de Blasio’s office, however, contains carve outs for anyone found with marijuana who can’t or won’t produce ID, are on parole, are in the driver’s seat of a car (regardless of whether it’s turned on), have a felony or misdemeanor arrest warrant, or were designated a “violent offender” in the past three years. For several of these types of individuals, a marijuana arrest will compound their legal situation, and this was one of the evils to be cured by the policy.
As you can imagine, with such uneven enforcement, marijuana enforcement has put a significant strain on the NYPD's relationship with minority communities. This issue has only been compounded by the fact that ICE has increased courtroom arrests, often posing as local police and then taking an immigrant into custody. Considering how the police need that relationship to keep both the immigrant and non-immigrant community safe, current enforcement is undermining policing.
Looking now to the MRTA, this legislation would legalize recreational marijuana use for adults at least 21 years old. If this were to happen, arrests for marijuana would all but cease (except along the lines of dealing to children or other carve outs the legislation contains). In addition to seeing significant tax revenues generated by a heavily-regulated industry, we would free up police resources to deal with more serious crimes that threaten public safety.
While some may argue that it would increase consumption, with New Jersey set to legalize, New Yorkers and tourists will take vacations to one of several East Coast Amsterdams, buy in Massachusetts or NJ and then bring their goods to NYC for use or resale: we will have essentially the same amount of marijuana, but it will be our policing resources that will be wasted, and our tourist industry, marijuana industry and tax revenue that will miss out.
For immigration purposes, legalization would lead to marijuana-related deportations in New York taking a nosedive as NY would no longer be creating the records that ICE requires to deport over marijuana crimes. In keeping with the themes of social justice and trying to alleviate the obvious and dramatic disparity in marijuana enforcement, this would remove the disastrous, life-altering consequences that NY immigrants face over what has increasingly been considered a low level offense, if that.
For the African American and Latino immigrant communities, marijuana policy has been rending, and over offenses that most Americans just don’t think is a big deal anymore. When the consequences are as steep as a deportation back into cartel-controlled territory, legalization in general and the MRTA in particular are exactly what New Yorkers need: for their economy, for their relationship with law enforcement and for the integrity of NY values.
Ryan Campbell, Esq. Communications Director, DRMActionCoalition.org
Huffington Post Contributor, huffingtonpost.com/ryan-campbell/