Despite the recent ruling by the Supreme Court of the United States denying the retro-activity in Padilla type cases, the high court ruled in favor of immigrants with minor marijuana offenses on their record. On Tuesday, the Supreme Court declared that a resident of the U.S. of Jamaican decent should not have been deported for a misdemeanor amount of marijuana. Criminal lawyers in Miami and across the nation will applaud the new ruling, but it is at most a consolation prize in light of the ruling that determined that Padilla would not apply retro-actively. The Supreme Court in Chaidez ruled that a defendant cannot withdraw guilty or no lo contendere pleas in cases that were resolved prior to March 31, 2010 even if they received affirmative mis-advise from their lawyer.
Adrian Moncrieffe resided in the United States since the age of 3. In 2008, Moncrieffe was pulled over by police officers in the State of Georgia. He was found to be in possession of approximately 1.3 grams of marijuana and charged with possession of marijuana with the intent to distribute. Moncrieffe entered a plea to the charge which amounted to a short period of probation with no jail time. In fact, he was eligible to have his case expunged once he had complied with all the conditions set out in the plea.
After completing his sentence, Immigration and Customs Enforcement (ICE) picked up Moncrieefe at his residence, incarcerated him and initiated deportation proceedings. After hearing arguments on the matter, the Supreme Court Justices ruled 7-2 that Moncrieffe should have had the opportunity to contest the deportation. The majority of the court found that possession of a small amount of marijuana is not an aggravated felony, and was therefore insufficient to permit automatic deportation. Criminal records involving aggravated felonies subject immigrants to deportation without exception. Misdemeanor amounts of marijuana allow for deportation, but in the majority of cases, immigrants are granted waivers under those circumstances.
Immigrants that are not U.S. citizens arrested for simple possession of marijuana should not entered a plea to the charge. While the punishment in the State of Florida for such an offense is typically time served, serious immigration consequences can arise from entering such a plea. While one conviction for simple possession can allow for a waiver in immigration court, a second conviction will subject someone to automatic deportation. Immigrants arrested and charged for simple possession should hire a qualified and experienced criminal defense attorney to contest the charge.
An experienced defense lawyer can often find defects in the case and file appropriate motions which may lead to a dismissal of the charge. If there are no defects ion the case, another option would be to enter a pre-trial diversion or pre-trial intervention program. In Miami, first-time offenders can enroll in the program and exchange for completing a drug class, the prosecution will dismiss the case. Entry into one of these program will have no negative immigration consequences because a defendant never enters a plea. The best advise is to seek counsel and avoid taking a plea at all costs. Remember there are options that may cost a little more up front, but will avoid a defendant from later facing deportation proceedings.
Court Limits Deportations Over Marijuana Crimes, Miami Herald.com, April 23, 2013.