Analysis & Comment

Opinion | Their Pot Convictions Were Erased, but They Still Face Deportation

In 2019, New York decriminalized possession of small amounts of marijuana. Two years later, the state legalized recreational marijuana. The laws had the effect of automatically erasing certain low-level convictions related to the drug.

At the time, officials noted that the new laws were intended to rectify the state’s “racially disparate” enforcement of marijuana crimes. Yet, for many immigrants who received deportation orders because of their marijuana convictions, the benefits of these new laws have yet to materialize.

I am an immigration attorney, and representing clients with deportation orders makes up much of my work. Among my clients is Kwame Siriboe, a Ghanaian immigrant who received asylum in 1992. Mr. Siriboe was ordered to be deported in 2013 because of three convictions for low-level marijuana sales from 1999 to 2001. However, the government was not able to immediately get a travel document from his home country, an issue that affects a small percentage of deportations each year.

For nearly a decade, Mr. Siriboe was forced to check in with Immigration and Customs Enforcement at least twice a year while he waited for the government to deport him. In that time, he took trade school classes in property maintenance. Upon graduating, he landed a job maintaining a domestic violence shelter and was classified as an essential worker during the pandemic. He also watched with hope as the New York Legislature debated, and then passed, its 2019 law decriminalizing marijuana.

The automatic expungements in the 2019 law applied only to marijuana possession (it wasn’t until 2021 that this policy was extended to include sales). However, the law included language that Mr. Siriboe was able to use to prompt a New York criminal court to get rid of his sale offenses.

In 2020, I filed a motion with the immigration court, arguing that because Mr. Siriboe’s convictions had been thrown out, he should not be deported. More than 90 family, friends and community members wrote letters to the court in support of the motion, and the court terminated his deportation order in early 2022. He became a U.S. citizen in December.

Were it not for the legal assistance he received, Mr. Siriboe could well have been deported. According to data collected by Transactional Records Access Clearinghouse Immigration, which tracks how immigration laws are enforced, at least 1,300 people in New York whose most serious conviction was for marijuana possession or sale were ordered deported from 2003 to 2020. This includes nearly 20 people in the first year following the 2019 decriminalization law.

Marijuana decriminalization has afforded many of these people the right to challenge their deportation orders. The problem is that asking an immigration court to revisit a deportation order is a complex process that often requires legal representation. The need for representation in these types of cases far outstrips the number of lawyers taking them. There is no state or local funding dedicated to representing people with existing deportation orders who, like Mr. Siriboe, who aren’t in Immigration and Customs Enforcement custody.

This process becomes even more complicated once someone is deported. Another client, Leonel Pinilla, was deported to Panama in 2012 after 30 years in the United States because of three convictions for marijuana possession in New York, two from 2005 and one from 2008.

Mr. Pinilla’s convictions were subject to the automatic expungements put in place by the Legislature. His case to get his deportation order thrown out is making its way through the federal court system after a series of complex motions and appeals. If Mr. Pinilla is successful, he will then face the hurdle of convincing the government to give him the travel documents he will need to return to the United States, a process that can take years.

More can be done to address cases like those of Mr. Siriboe and Mr. Pinilla. One group trying move things in the right direction is the National Immigrant Justice Center, which is pressing the federal government to create a process to allow unjustly deported people to return to the United States. A centralized system for returning post-deportation, such as the one urged by the group, would allow Mr. Pinilla to more quickly reunite with his family in the United States, including his partner and stepson who are both disabled and need his support.

In addition, New York State and local governments can offer legal service organizations funding to help people with deportation orders. There is precedent for funding initiatives intended to fill a gap in immigration services. The state and New York City‌‌ fund the New York Immigrant Family Unity Project, which arranges representation for detained immigrants in deportation proceedings. And the city funds the Rapid Response Legal Collaborative to assist detained immigrants imminently facing deportation.

But neither of these programs specifically directs resources toward immigrants with existing deportation orders who are either living in legal limbo in the United States or have already been deported. New funding could bridge that gap.

The Legislature wrote its new marijuana laws to ensure that the communities most affected by racially disparate enforcement saw the benefits of decriminalization. For people like Mr. Siriboe and Mr. Pinilla who were convicted under the state’s discriminatory regime, rectifying the harms of those convictions must include addressing the immigration consequences.

Jill Applegate is an immigration attorney and fellow at the Neighborhood Defender Service of Harlem.

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