Biden Marijuana Pardon Won’t Have Much Effect on Removability

On October 6, President Biden issued a pardon for all U.S. citizens and lawful permanent residents who have committed the offense of simple possession of marijuana under 21 U.S.C. § 844 or D.C. Code 48–904.01(d)(1) “regardless of whether they have been charged with or prosecuted for this offense on or before the date of” that proclamation. Notably, however, this pardon doesn’t apply to aliens unlawfully present in the United States (as my colleague Jon Feere has written), nor will it have much effect on removal cases — likely because the White House does not want to press its luck by appearing soft on crime and immigration, two areas in which the president polls poorly.

The Crimes in Question. Under the federal schedule of controlled substances, 21 U.S.C. § 812, “marihuana” is a schedule I drug, meaning Congress has determined it “has a high potential for abuse” and “no currently accepted medical use in treatment in the United States”.

Of course, 27 states have decriminalized certain marijuana offenses in whole or in part, with some permitting the use of medical marijuana, and others also allowing recreational consumption by adults, so there is a disconnect between the federal statutes and state laws. Take my advice and don’t try to pass through a TSA or Border Patrol checkpoint with the stuff, even if it is otherwise legal in your state.

Simple possession of marijuana under 21 U.S.C. § 844 is a misdemeanor, carrying a potential jail sentence of up to a year and/or a fine of not less than $1,000.

D.C. law, on the other hand, permits a person aged 21 or older to possess, transport, or use up to two ounces of marijuana, to sell not more than one ounce to another aged 21 years and above, and to have a certain number of marijuana plants. Outside of those limits (and some even more arcane ones), however, it’s still a misdemeanor carrying a penalty of 180 days in jail and a fine.

Federal Cases Are Rare. Press reports indicate that the pardon will affect about 6,500 people who were convicted under the federal statute, and thousands of others under the D.C. Code.

That’s not a lot of people, because federal convictions for simple possession of marijuana are rare. Usually, the feds leave such “minor” drug cases to the states — as opposed to trafficking and distribution of marijuana under 21 U.S.C. § 841, a much more common border crime.

Drug Convictions and Pardons Under the Immigration Laws. Any conviction for violating a law of a state, the United States, or a foreign country renders an alien inadmissible under section 212 of the Immigration and Nationality Act (INA), and even presidential pardons do not erase those immigration consequences.

Under section 237 of the Immigration and Nationality Act (INA), otherwise removable aliens can escape the immigration consequences of certain convictions that are removable offenses, provided they receive “a full and unconditional pardon by the President of the United States or by the Governor of any of the several States”. Those include convictions for crimes involving moral turpitude, aggravated felonies, and “high speed flight from an immigration checkpoint”.

Interestingly, however, neither presidential nor gubernatorial pardons have any effect on deportability for convictions related to violating or conspiring to violate or attempting to violate “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance”.

That said, a “single offense involving possession for one's own use of 30 grams or less of marijuana” won’t render a lawfully admitted alien deportable, nor will it preclude a finding of “good moral character” under section 101(f)(3) of the INA (any more will, however, which could be a problem for aliens seeking to naturalize), though it may be discretionary factor in connection with an immigration application.

Disapproval from Immigrants’ Advocates. The exclusion of aliens who aren’t lawful permanent residents from the scope of this White House proclamation displeased many immigrant advocates, including the National Immigrant Justice Center, which tweeted:

According to the Transactional Records Access Clearinghouse at Syracuse University, 45,000-plus aliens were deported from the United States between FY 2003 and August 2018 for possession of marijuana.

Why Not All Aliens? So why would Biden issue a blanket pardon for simple marijuana possession that excludes other aliens?

A local immigration attorney who spoke to the San Diego Union-Tribune “hypothesized that the Biden administration made this choice to avoid upsetting conservative immigration hardliners who would have likely used the move to increase fearmongering ahead of the midterm elections”. That’s one way of putting it.

In a recent Gallup poll, 4 percent of respondents asserted that “crime/violence” was the most important issue facing the nation, and 6 percent asserted that it was “immigration”.

Although those results pale in comparison to the “High cost of living/Inflation” (the choice of 17 percent of those polled), the “Economy in general” (the number-one issue for 12 percent), or “The government/Poor leadership” (the leading concern of 22 percent of respondents), immigration and crime are plainly weighing on voters’ minds.

Biden receives some of his lowest marks when it comes to his performance on immigration (he was 33 points underwater on the subject in a recent Monmouth poll, with 64 percent of respondents disapproving of the job he is doing on immigration compared to just 31 percent who approve), and he scores little better when it comes to his handling of crime.

The president plainly wanted to give his party a fillip in the upcoming midterm elections by issuing these pardons, and with 91 percent of respondents in an April 2021 Pew Research Center poll supporting some kind of legalization of marijuana, his fellow Democrats may well receive a minor boost come November.

Given how dourly American voters view his immigration performance, however, Biden likely didn’t want to push his luck by removing restrictions on aliens convicted of drug crimes. Hence the otherwise surprising limits on the scope of his marijuana possession pardons.