Facing Deportation For a Decades-Old Cannabis Crime

Andres (not his real name) is Colombian. He has asked for anonymity, citing the pending legal status of his case and the fact that his employer doesn’t know that he is not a citizen. Andres’s wife is a United States citizen of Dominican heritage. They met in the bakery where she worked in 1997, and they were married in 1999. They have a 13-year-old son, and a daughter who will be two in March. Andres is scheduled for removal from the United States, for possession of a total of four “dime bags” or .5 grams per bag, stemming from two separate busts that occurred 16 and 18 years ago. He hasn’t been in trouble with the law since.

During the years 2000 through 2002, Andres was arrested twice, once for possession of three “dime bags” of weed, or $30 worth of marijuana, and the second time for only one dime bag, that he copped on the street in the Bronx. He was charged with unlawful possession of marijuana in both cases.

“The undercover [police] would watch the community with binoculars from up on the roof. I would see them while playing with my dog on the roof, so even though I knew they were there, they weren’t always there. I was young and stupid and took a chance. I wasn’t thinking about the future. They saw me, stopped and searched me, and took me in,” Andres told Cannabis Now.

When his wife initially petitioned for Andres to get a green card in the ’90s, he didn’t have a rap sheet. After 9/11, immigration rules became stricter. Since 2001, Andres’s possession priors were always a recurring issue. He has had to work off the books to support his family.

Over time, his cases have been sealed and, therefore, are no longer visible on an employment background check, which allowed him to go to college and obtain a degree in web design. His boss is unaware of his precarious situation. When he has a court date, he takes a personal or sick day.

The government can still see his charges, even though unlawful possession of marijuana is ranked lower than a misdemeanor.

In 2007, Andres used his life savings to hire criminal attorneys from the firm Epstein & Weil, who were recommended by his previous immigration attorney. The firm charged him over $10,000, yet they were unsuccessful in getting his two possession charges dismissed. At the time, they didn’t attempt to plead the charges down.

If Andres had only one possession on his record, he could have applied for a waiver. However, having two on his record is a removable offense. His attorney had previously filed a “404 motion to dismiss,” or waive one of the convictions, but the motion was denied in 2007.

“I have been battling this since 2007. It has been over a decade,” said Andres.

Appointments with immigration can take several years. He had an upcoming appointment scheduled in May of 2018, but it was moved up – potentially to catch him off guard. More likely, since the Trump administration has already deported several thousand people for federal offenses, they are thoroughly making their way down the line to the less egregious ones.

Andres unsuccessfully tried to apply for political asylum. The basis of the denial was attributed to the fact that his mother didn’t apply for it on his behalf when he arrived in the United States as a 13-year old child. (Upon arrival, migrants have up to one year to apply.) Years later, despite the fact that Colombia is an extremely dangerous country, with many warring narco and guerilla factions, Andres couldn’t provide enough scenarios to immigration officials as to why his life would be in danger in there.

Andres is under the impression that if he hadn’t called attention to his illegal status by applying for residency, he might have continued to fly under the radar for several years, perhaps even until the Marijuana Justice Act would have been signed into law.

The MJA would potentially exonerate him. (There is a plethora of people in predicaments similar to Andres, and the Marijuana Justice Act could provide relief for many of them.)

Andres also feels his initial legal aid attorney pushed him into pleading guilty. In hindsight, if he had known that would affect his immigration status in the future, he would have pled not guilty.

Under the Padilla law (Padilla vs. Kentucky), if a defendant is not advised of the consequences of his case, the charges must be dismissed. Unfortunately for Andres, his case predates the Padilla law.

His current immigration lawyer, Cristina Xenidies, of the firm Youman, Madeo, & Fasano, put him in touch with a criminal defense attorney at Richman Hill & Associates. Richman Hill’s principal attorney, Renée Hill, charged Andres $5,000 to re-plead his charges down. This time, there was a successful outcome. The hearing lasted all of five minutes. The district attorney and his attorney had reached an agreement before the hearing. Perhaps Andres got lucky, considering the hearing took place right before Christmas, and the parties involved in determining his future were in good spirits. His charges were pleaded down, citing prior “ineffective counsel” as one of the reasons used to support the motion.

For now, his main concern is that his mother – whom he hasn’t seen since 2001 – will pass away before he can resolve his situation and see her again. Or, if he goes to see her, or is removed, he will not be allowed to reunite with his wife and children in the United States. His steadfast wife has vowed to stand by her man. If the entire family has to relocate to Colombia, so be it.

For now, his legal team feels strongly that it won’t come to that. With his criminal record expunged, he should no longer be a candidate for removal. For now, Andres is patiently waiting to be notified when he is due back in immigration court.

TELL US, what do you think about U.S. immigration and drug policy law?