More than two decades ago, Natalie Burke, a legal immigrant from Jamaica, was convicted of transporting and selling marijuana in Arizona. Although it is now a legal business in her state, and although Burke received a pardon from Arizona’s governor last year, her life was thrown into limbo when the federal government decided to deport her based on her drug record. The attempt to deport Burke resulted in a year and a half of immigration detention and years of stress, causing ongoing anxiety that may have contributed to her suffering a stroke as she fought to stay in the country.
This situation is not uncommon. Human Rights Watch (HRW) and the Drug Policy Alliance (DPA) note: “Thousands of people in the United States are deported each year for drug offenses that, in many cases, no longer exist under state law.” According to both According to the latest report of an organization, from 2002 to 2020, the U.S. government deported more than 500,000 immigrants whose most serious crimes were drug crimes. Such deportations peaked during the Obama administration but still occur at 1,000 to 2,000 per month.
Under U.S. immigration law, citizenship requires “good moral character,” which makes anyone convicted of a “serious felony,” including drug trafficking, ineligible. The requirement could also disqualify green card holders working in the state’s legal cannabis industry. Even a conviction for marijuana possession, unless it involves a single offense of no more than 30 grams, can result in legal immigrants being deported. More than 47,000 of the expulsion cases identified by Human Rights Watch and the Data Protection Agency fell into the latter category.
“The United States’ unique combination of anti-drug war and deportation mechanisms targets, excludes and punishes non-citizens who have committed minor crimes or engaged in legal activities in certain states,” DPA Director of Federal Affairs Mariza Perez Medi Maritza Perez Medina said. “Punitive federal drug laws separate families, destabilize communities, and terrorize non-citizens.” The report recommends changes to immigration laws to “align with current national drug policy reforms” and “prevent the immense human suffering inflicted in the name of the war on drugs.” .
Cocaine accounted for two-fifths of the deportations analyzed in the report, while marijuana accounted for one-third. Cases involving sales accounted for 41% of the total, while cases involving possession or use accounted for 30%.
People who commit these crimes are deemed unfit to remain in the United States, and immigration judges generally do not have the discretion to grant relief. This policy affects many people who have lived in the United States for many years, developed strong ties to the country, raised families, and made a legitimate living.
After moving to the United States, Burke obtained a green card and became a legal permanent resident. She went into social work, eventually earning a PhD and sending her son to college. But “no one ever explained to me that you really weren’t here permanently,” she said. Since 2009, Immigration and Customs Enforcement (ICE) has been trying to deport her under an act legalized in 24 states.
One of those states is California, where Oswaldo Barrientos, an immigrant from El Salvador who has been a legal permanent resident since age 13, works at a state-licensed marijuana cultivation operation. Because of that occupation, he was deemed ineligible for citizenship. Also in California, another legal permanent resident, Maria Sanchez, was disqualified for an “aggravated felony” charge of growing four marijuana plants to treat arthritis.
In New York, Paul Pierrulus, who immigrated with his family when he was 5 and has lived in the United States ever since, was convicted of selling cocaine to college students and was detained for two and a half years. ICE has repeatedly sought to deport Pierus, who worked as a strategic consultant for a financial firm for 13 years, to Haiti, where his parents were born, but he has never lived there.
Miguel Perez Jr. is a U.S. Army veteran who has lived in Chicago for 30 years and was deployed to Afghanistan twice before being deported to Mexico in 2016 on a cocaine conviction. Three years later, Perez finally received U.S. citizenship thanks to clemency from Illinois Governor J.B. Pritzker. But as Burke’s case illustrates, even clemency does not guarantee immigration relief.
The report tells the stories of many such immigrants who were punished twice for violating anyone’s rights: first under drug laws and then, often years later, under immigration laws. Human Rights Watch noted that this combination “double penalty[s] Civil penalties are imposed on them after serving time for drug convictions,” thereby “frequently subjecting them to lengthy detention and eventual deportation.””.
Despite local, state, and federal reforms aimed at reducing the harm caused by tough drug laws, dual penalties persist. “Conviction of even the most minor drug offenses, such as possession of small amounts of a controlled substance, including marijuana, if it is illegal, can have devastating consequences that far exceed a criminal sentence,” the report states.
As a first step to address this problem, Human Rights Watch and the Data Protection Agency urge Congress to eliminate immigration penalties based on drug-related behavior that states have decriminalized. They said Congress should also allow immigration judges to block deportations on a case-by-case basis after weighing “the harms of deportation as well as evidence of rehabilitation, family ties and other fairness issues.” They recommended several other immigration reforms, including considering time limits for drug offenses, narrowing the definition of a “serious felony,” eliminating “controlled drug offense grounds for inadmissibility and deportation,” and banning “unnecessary or prolonged” immigration detentions. The report also recommends drug policy reforms, including decimating low-level possession of marijuana and repealing federal marijuana prohibition.
Even without amending the legislation, the Department of Homeland Security could use its discretion to improve the interplay between drug and immigration laws, Human Rights Watch and the Data Protection Agency said. Among other things, they said the department should “avoid immigration policing actions based on drug-related arrests, charges or convictions”; “end enforcement actions based on expungements, quashings and pardons of convictions”; “Using pleadings or statements in criminal proceedings as grounds for denial of immigration benefits”; and “Allowing individuals who have been deported for drug convictions to apply for reentry through an immigration waiver.”
Without such reforms, immigration rules will continue to exacerbate the injustices caused by the war on drugs, the report warns. “Until the federal government recognizes discrimination in the enforcement of drug and immigration laws, the drug war will remain a major driver of immigrant crime and separation from their families and the country they often view as home,” the report said.
