US Immigration and Cannabis Criminal Records

Dec 17, 2020US Immigration & Criminal Records

If you have a criminal record for possession of cannabis (marijuana) then will you be deemed inadmissible for a migrant or a non-migrant visa. This article looks at what can be done when someone has a criminal record for possession of drugs, and in particular possession of cannabis.

US Waiver of Inadmissibility

US Immigration and Cannabis Criminal Records

US Immigration and Cannabis Criminal Record

If you have a criminal record for possession of cannabis (marijuana) then will you be deemed inadmissible for a migrant or a non-migrant visa.

For a non-migrant visa the rules are more flexible when it comes to drugs offending; the general rules for obtaining a waiver of inadmissibility are set out in the  Matter of Hranka, 16 I&N Dec 491 (BIA 1978) 

For a migrant visa, namely were the person wants to move to the US, then the rules are much stricter. If, for example, you had a UK caution or conviction for possession of cocaine, then you would typically be ineligible for a “waiver of inadmissibility.” In these circumstances you would need to have the conviction quashed or the police caution deleted.

If you have a police caution or a conviction for possession of cannabis, then you would be ineligible for a visa, but you may still be able to get a waiver of inadmissibility.

Migrant Visa’s to the US include the following categories:

 

Immediate Relative & Family Sponsored

Visa Category

Spouse of a U.S. Citizen 

IR1, CR1

Spouse of a U.S. Citizen awaiting approval of an I-130 immigrant petition

K-3 *

Fiancé(e) to marry U.S. Citizen & live in U.S.

K-1 *

Intercountry Adoption of Orphan Children by U.S. Citizens

IR3, IH3, IR4, IH4

Certain Family Members of U.S. Citizens

IR2, CR2, IR5, F1, F3, F4

Certain Family Members of Lawful Permanent Residents

F2A, F2B

Employer Sponsored – Employment

 

Employment-Based Immigrants, including  (preference group):

  • Priority workers [First]
  • Professionals Holding Advanced Degrees and Persons of Exceptional Ability [Second]
  • Professionals and Other Workers [Third]
  • Employment Creation/Investors [Fifth]
  • Certain Special Immigrants: [Fourth]

 

 

E1
E2

E3, EW3

C5, T5, R5, I5

S (many**)

Religious Workers

SD, SR

Iraqi and Afghan Translators/Interpreters

SI 

Iraqis Who Worked for/on Behalf of the U.S. Government

SQ

Afghans Who Worked for/on Behalf of the U.S. Government

SQ

Other Immigrants

 

Diversity Immigrant Visa

DV

Returning Resident

SB

 

Drug Use and Inadmissibility

The two main ways to deal with a cannabis police caution or conviction is 1) to have your conviction overturned on appeal or your police caution expunged or 2) to establish that that your police caution or your conviction was for less than 30 grammes of cannabis, in which case a waiver of inadmissibility may be possible.

Appealing a Cannabis Police Caution or Conviction for US Immigration

If you have received a police caution for possession of cannabis or a conviction for possession of cannabis, this record will be recorded on the Police National Computer (PNC) until you react 100 years of age, unless it is deleted (in the case of a caution) or appealed (in the case of a conviction).

If USCIS (United States Citizenship and Immigration Services) are already aware of your police caution or your conviction, if your record is deleted off of the PNC, they will not accept this as a valid basis to grant your waiver if your record has been deleted for rehabilitative reasons or for U.S. immigration purposes. Namely if the only reason your record was delete was due to a compassionate/public interest reason, then the US authorities will not see this as a good reason to grant a waiver.

There is currently no general basis to have a conviction deleted on public interest grounds (although see our case here), and generally the only way to have a conviction removed is on a technical basis, namely that the conviction was unsound. To do this you would need to appeal your conviction to the Crown Court if the conviction was before the Magistrates (which is most likely if it was a minor cannabis case), or to the Court of appeal if it was a Crown Court case.

There are time limits to appeal a conviction, and also there must be a sound basis for appeal, and so if you do not qualify for an appeal, then your conviction will remain on the PNC indefinitely. A basis for appeal would not include that the conviction was causing you immigration difficulties. You can appeal out of time, but you would need to provide a solid basis for an out of time appeal.

If you pleaded guilty at court you could apply to have your case reopened, however again you would need a good reason to do so, and this would typically have to be done within a reasonable timeframe.

Cannabis Police Caution Deletion

If your record is a police caution, then you would be able to apply to the police for deletion of this record. The police will consider deletion of a police caution on public interest grounds, as well as on technical grounds.

If the US authorities are already aware of your caution, then a public interest basis for deletion may not assist your case, although the police usually do not provide reason when they authorise a deletion. If your deletion application is premised on multiple grounds, along with public interest grounds, it may be difficult for the US authorities to determine exactly why your caution was expunged.

If the US authorities were unaware of your cannabis police caution, and you managed to get it deleted from the PNC, your PNC record would be clear (provide you had no other record) and your ACRO Police Certificate would state “no trace”. If your caution is not deleted from the PNC then your police certificate will state “no live trace”, which will tell the USCIS that you have a “stepped down” criminal record.

What if I can’t get my cannabis police caution or conviction removed from the PNC?

If you can not get your cannabis police caution or conviction deleted from the PNC, then in order to be eligible for a waiver of inadmissibility, you would need to show that your police caution or conviction is for less than 30 grammes of cannabis.

You would imagine that this should be fairly straightforward, namely you would expect the police and Courts to keep an accurate record of what happened in your case. This however is not always the case, and particularly for older allegations you may find it difficult to prove that your case related to less than 30 grammes of cannabis.

Magistrates courts, where minor possession cases are often concluded, although are classified as a “court of record”, in practice often the records are not complete. For older cases the possibility that there will be no, or partial records, increases. The police or prosecution can also be approached for their records, but the older the case, then the less likely the records will be available or complete.

What can I do if there is no record of the amount of cannabis?

If you are unable to show the amount of cannabis involved in your police caution or your conviction case, we may still be able to assist you.

We have in the past worked alongside specialist US immigration attorneys to obtain a waiver of inadmissibility where it has been impossible to find records that proved the amount of cannabis.

Also if you are unsure how to approach the police, courts or prosecution for your records, or simply you do not want to contact them yourself, we can obtain the records on your behalf.

To find out more please get in touch to arrange an initial consultation.

Deletion of Police Records

Along with assisting in proving the amount of cannabis involved in your case, we are also expert in applying for the deletion of police records.

We have successfully applied for the expungement of hundreds of police records, including police cautions issued for the possession of cannabis, cocaine, heroin, ecstasy, MDMA, ketamine, steroids, LSD and Mephedrone.

To arrange a consultation with us, then please get in touch.

We are happy to work alongside your US attorney. If you do not have a US attorney, we will be able to refer you to experts whom we have worked with previously. The attorneys we work with have specialist knowledge of obtaining US immigration visas where the applicant has a previous criminal record.

 

Contact Us

Related Articles

Related

Head Office 

Legisia Legal Services

Lodge Park Business Centre

Lodge Lane, Langham

Essex, Colchester

CO4 5NE

Cases are conducted nationwide & internationally

Additional consultation Address (Not Postal)

50 Liverpool Street

London EC2M 7PY

Pin It on Pinterest

Share This