With the Biden administration’s recent announcement that it was issuing widespread pardons for people convicted of federal marijuana possession, progressives and criminal justice advocates rejoiced that the president had finally reversed course on a stance preserved in amber since the 1990s on the use of the substance, which at this point is recreationally legal in nearly half of US states.
Yet, in the immediate afterglow of the announcement, some critics began pointing out limits in its scope, with one particular disappointment coming quickly into focus: It would do almost nothing for noncitizens, for whom any involvement with the marijuana industry, let alone criminal convictions related to the substance, have spelled the danger of loss of status and deportation. The Biden administration explicitly left noncitizens out of its pardon, leaving a great uncertainty around who, if anyone, will be able to fend off deportation as a result. Beyond that, a more fundamental change to the way marijuana is treated in immigration policy could be life-changing for the potentially hundreds of thousands who are battling deportation as a result of marijuana possession.
The order bizarrely carves out both immigrants who are not currently citizens or permanent residents, and “non-citizens not lawfully present in the United States at the time of their offense.” In effect, this means people who were undocumented at the time of the crime, and those who perhaps lost their status as a result of the conviction, are left out.
There doesn’t seem to be any legal impediment to the president’s pardoning just about anyone he wants, which signals that this specific exclusion is driven by concerns over political perception. This is likely downstream from Biden’s having long ago absorbed the message that his GOP opponents will seize on immigration as the culture war anxiety du jour going into the midterms and preferring to stop short of steps that could be viewed as overly deferential or counter to the knee-jerk punitive response that has defined the US policy-making consensus toward both immigration and drug use over the last three decades.
Many noncitizens also weren’t covered by the pardon for two other reasons. First, most marijuana convictions aren’t federal anyway; state-level convictions far outnumber them. Second, the pardon targets only convictions for simple marijuana possession, whereas the vast majority of federal marijuana prosecutions are classified as trafficking.
Yet, even if every last possession conviction, state or federal, were to be immediately pardoned, it’s not clear that it would automatically help immigrants who might have faced immigration consequences from them, for the simple fact that immigration law mentions controlled-substance offenses apart from mere criminal convictions. In a nutshell, these types of crimes are legally considered so serious that they constitute their own grounds for rejecting admission or removing someone from the country. So while Biden took pains to leave immigrants out, their inclusion in the pardon order wouldn’t necessarily have made a difference.
The key thing to understand here are the concepts of inadmissibility and deportability, which govern whether a person can obtain or maintain some type of immigration status, respectively. The Immigration and Nationality Act, now Title 8 of the US Code, sets out specific rules for what can render a person inadmissible and deportable. Yes, they include convictions for certain crimes that are considered to be of “moral turpitude,” which a pardon could have real teeth to counteract, but the law separately includes drug possession crimes.
“It usually falls into what’s a different kind of category, commonly known as a controlled substances offense, which is a different grounds of deportation… not waived by pardons,” said Matthew Vogel, supervising attorney at the National Immigration Project of the National Lawyers Guild.
The deportability standard specifically mentions presidential pardons, but notably not in the section that discusses drug crimes. The inadmissibility standard, which could bar someone from ever obtaining any status at all, doesn’t mention pardons at all. As flagged to The Nation by Minnesota-based immigration attorney David Kubat, the 2003 Matter of SUH decision by the Board of Immigration Appeals appears to specifically preclude a pardon from having an immigration effect beyond what is explicitly allowed for under the statute.
According to Vogel, there is a one untested way that the pardons could be used to head off immigration consequences: There’s a theory that, given the constitutional basis of presidential pardons, they supersede any statutory authority and should functionally wipe a conviction clean in the eyes of the federal government, as if it’d never happened. Ultimately, a federal judge would have to agree for it to work, and of course this still would only be an option for those that did get the pardons, which was a very limited group.
Rather than the pardons themselves, immigration practitioners and advocates are looking at another, lesser-noted action that Biden took concurrently: ordering the Departments of Health and Human Services and Justice to reexamine marijauna’s inclusion in the federal schedule of controlled substances, where it appears as a Schedule I drug alongside heavy-duty narcotics like heroin. While Biden can’t directly order cannabis to be de-scheduled, the review that he ordered will take into account factors like whether it has accepted medical uses and a high potential for abuse—questions on which the scientific and medical consensus have shifted dramatically since the Controlled Substances Act was enacted in 1970—and make a determination about whether it should be moved to a lower schedule or taken off the list completely.
If it is de-scheduled, then it is no longer a controlled substance, and the possession of it can no longer count as a controlled-substance offense. However, how this would actually play out in court isn’t clear; some lawyers pointed out that the existing case law looks at the schedule at the time an offense was committed to determine deportability. To wipe the slate clean, the de-scheduling might have to be retroactive, which is something that might require Congress. That is, to put it mildly, a tall order, and still a hypothetical.
As things stand, noncitizens can’t expect that the proclamation will be enough to prevent loss of immigration status or even deportation as a consequence of marijuana offenses.