As removal defense attorneys, we at Cohen Forman Barone, LLP frequently find ourselves representing clients with drug sale convictions. The defense of all non-citizens with convictions involving controlled substances is beyond the scope of this article. This post will focus on the particular situation of a lawful permanent resident (“Green Card holder”) with a conviction for misdemeanor marijuana sale in New York State.
As a general rule the Immigration and Nationality Act (“INA”) provides that any non-citizen convicted of an offense involving a Controlled Substance (including narcotics and marijuana) is removable from the United States. This includes even long-time residents without any other criminal convictions. However, for long-time resident the INA also provides a form of relief known as Cancellation of Removal. This is a form of relief that the resident may be granted by the Immigration Judge (in his/her discretion) allowing the resident to maintain their status and escape deportation. However, if the drug conviction statute involves any element of commercial selling or even an intent to sell the controlled substance (see exception discussed extensively below), the INA classifies such a crime as not only a controlled substance offense but also as an Aggravated Felony. An Aggravated Felony is particularly difficult to overcome, even for a longtime resident, as the non-citizen resident must be able to demonstrate that they do not have an Aggravated Felony conviction in order to be eligible for Cancellation of Removal. Even if the Department of Homeland Security (“DHS”) has not alleged that the non-citizen’s conviction is an Aggravated Felony, it is the burden of the non-citizen seeking Cancellation of Removal to demonstrate that they have no such a conviction.
Most individuals prosecuted for marijuana sales in New York are arrested by state officials (local, municipal, county police) and then prosecuted in New York State criminal courts (rather than in federal court) under article 221 of the New York Penal Law (N.Y.P.L.). Article 221 of the penal law breaks down different levels of offense involving increasing amounts of marijuana sold and addressing the manner of exchange of the marijuana. The lowest level marijuana sale involves unlawfully selling, without consideration, two grams or less of marijuana or a single joint. See, N.Y.P.L. §221.35. Importantly, this statute, criminal sale of marijuana in the fifth degree applies only to transfers of these very small amounts of marijuana that do not involve money. However, the definition of any sale of a controlled substance, including marijuana, under New York law includes transfers without money. See, N.Y.P.L. §220.00(1). It is only this lowest level sale of marijuana that always involves no money. The next level marijuana sale, criminal sale of marijuana in the fourth degree, is the sale of any (unspecified) amount of marijuana (meaning either for money or not for money). See, N.Y.P.L. §221.40. The next highest sale, third degree (an E Felony in New York) involves the sale of more than 25 grams of marijuana though once again the sale could involve money or not involve money being exchanged. For our purposes, consideration of these three lowest levels of marijuana sale is sufficient.
At CFB we recently found ourselves representing a long-time resident with a conviction for criminal sale of marijuana in the fourth degree: 221.40. This means it was the sale of the unspecified statutory amount. While the government did not allege that our client was removable due to an Aggravated Felony, they argued at our final hearing that the client was ineligible for Cancellation of Removal because he could not demonstrate that he was not convicted of an Aggravated Felony. Remember, a non-citizen resident seeking this relief has the burden of showing they are eligible and not convicted of an Aggravated Felony.
At first blush it may appear that our client would be unable to show that he was not convicted of a crime involving commercial dealing as his conviction was for a sale of marijuana. However, because his conviction was of a state crime rather than federal, we must determine whether his crime would be classified as a felony under the federal Controlled Substances Act (“CSA”) in order to determine if this state misdemeanor is nonetheless properly classified as an Aggravated Felony. The CSA fashions an exception to felony punishment for those who distribute small amounts of marijuana where no money is exchanged. Accordingly, if the state statute under which a non-citizen is convicted would include conduct that would fall under the exception- distributing a small amount of marijuana without the exchange of money, then the conduct could not be an Aggravated Felony regardless of the fact that it constituted a “sale” of marijuana in the state of conviction. This analysis was employed and explained by the U.S Supreme Court in Moncrieffe v. Holder 133 S. Ct. 1678 (2013), a case arising from a non-citizen’s Georgia conviction of marijuana sale under a Georgia state statute. Years earlier the Second Circuit, the Federal Appeals Court having jurisdiction in New York State, similarly analyzed N.Y.P.L. §221.40 and noted that because a person could be convicted of the statute for selling a small amount of marijuana without money exchanged, the statute criminalized conduct that fell within the exception to CSA that would make the conduct a federal misdemeanor. See, Martinez v. Mukasey 551 F.3d 113 (2nd Cir. 2008).
At our final hearing, notwithstanding Martinez v. Mukasey and Moncreiffe v. Holder, DHS argued that because our client’s statute of conviction did not specify the amount of marijuana involved, it was our duty to prove that the amount of marijuana was small and that it was for no money such that it could fall within the CSA exception. The Immigration Judge initially appeared to agree with government until we argued to the Court that it had all the information it needed in front of it by looking at the statutes. While 221.40, sale in the fourth degree, does not specify any amounts, both sale in the fifth and sale in the third do specify amounts. Sale in the fifth would have to be a single joint or less than two grams by the express language of the statute and sale in the third must be more than 25 grams. Therefore, the amount involved in a fourth degree sale must be 2 grams or more up to 25 grams. If the sale involved more than 25 grams then the third degree statute would cover such conduct. The Immigration Judge agreed and found that because fourth degree must involve such a range of amounts and could be not involving money, no further examination of record of conviction was required and the conviction could not be classified as an Aggravated Felony. The Immigration Judge rejected the government’s argument that we had to prove the amount in question and found the case controlled by the Second Circuit’s holding in Martinez v. Mukasey.
After being found statutorily eligible for Cancellation of Removal our client was ultimately granted relief and permitted to remain in the United States in his green card status. We hope this case serves as an analytical guide to fellow practitioners with clients convicted of misdemeanor marijuana sale in New York as well as to criminal practitioners representing non-citizens in pending criminal cases and who are attempting to untangle the immigration law as it will later apply to their clients facing criminal charges.