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California's Proposition 64, the Adult Use of Marijuana Act, not only legalized adult marijuana use but also provided some relief for people who had previously been convicted of marijuana crimes. Among other things, some marijuana-related felony convictions can be "redesignated" as misdemeanors after the sentence has been served. What does this mean for immigrants?

As you may know, immigrants can be deported if they are convicted of controlled substance crimes, among other offenses. However, a conviction for possessing 30 grams or less of marijuana for personal use is not grounds for deportation and removal.

If you were threatened with deportation for a marijuana felony, would a Prop 64 redesignation as a misdemeanor prevent your removal from the U.S.?

A lawful permanent resident from California recently asked that question in a case before the Ninth Circuit Court of Appeals.

Does a felony redesignated as a misdemeanor still warrant removal?

The California woman was convicted of possession of marijuana for sale, a California felony. The Department of Homeland Security (DHS) charged her with violating the Immigration and Naturalization Act by 1) committing a qualifying controlled substance offense and 2) committing an aggravated felony (drug trafficking). It filed to deport and remove her.

While that case was still pending, the woman applied to have her marijuana conviction redesignated from felony to misdemeanor under Prop 64, and her application was granted. She then applied for withholding or cancellation of removal on several grounds, but primarily because she was no longer convicted of a deportable offense.

The immigration judge and the Board of Immigration Appeals ruled that she was still removable. She appealed to the Ninth Circuit Court of Appeals.

Her primary argument was that the grant of her Prop 64 redesignation changed her felony conviction to a misdemeanor, and that misdemeanor would not provide grounds for removal. Moreover, California had specifically intended to reduce the immigration consequences of marijuana convictions.

The Ninth Circuit, unfortunately, decided that the woman's arguments failed. This is because immigration law is federal, and it does not recognize state policy decisions to redesignate felonies as misdemeanors when the decision is made for reasons of equity or rehabilitation -- or even to specifically limit the immigration consequences of the offense.

If her felony conviction had been wrongful or procedurally defective, she might have won. However, the state's redesignation doesn't change the fact that, for immigration purposes, she remained guilty of a controlled substance felony.

Although the immigrant did not win in this case, it shows that there can be profound policy questions in individual immigration cases that should be litigated. To discuss your case with an experienced immigration attorney, contact Yew Immigration Law Group.

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