In 2019, New York took a step forward and decriminalized possession of small amounts of marijuana. Two years later, they legalized recreational marijuana. These changes had the intended effect of automatically erasing certain low-level convictions tied to the drug. It was recognized by officials that these laws were put in place to rectify the state’s “racially disparate” enforcement of marijuana crimes. However, many immigrants who were once subject to deportation orders due to their marijuana convictions have yet to see the benefits of these laws.
As an immigration attorney, I’ve seen the impact of deportation orders on my clients, including Kwame Siriboe, a Ghanaian immigrant who received asylum in 1992 but was ordered to be deported in 2013 due to three low-level marijuana sales convictions from 1999 to 2001. However, the government wasn’t able to obtain a travel document from his home country, which is an issue that affects a small percentage of deportations each year. For nearly ten years, Mr. Siriboe had to check in with Immigration and Customs Enforcement regularly while he waited for the government to deport him. During that time, he attended trade school classes in property maintenance and landed a job maintaining a domestic violence shelter. His classification as an essential worker during the pandemic highlighted the need to revisit his case.
The automatic expungements in the 2019 law only applied to marijuana possession (it wasn’t until 2021 that the policy was extended to include sales). However, the law included language that helped Mr. Siriboe prompt a New York criminal court to dismiss 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 supporting the motion, and the court terminated his deportation order in early 2022. He became a U.S. citizen in December.
Legal assistance was crucial for Mr. Siriboe. According to data collected by Transactional Records Access Clearinghouse Immigration, at least 1,300 people in New York who were ordered deported from 2003 to 2020 had a marijuana possession or sale conviction as their most serious offense. This includes almost 20 people in the first year following the 2019 decriminalization law.
While marijuana decriminalization has given some people the right to challenge their deportation orders, the legal process can be complex. Asking an immigration court to revisit a deportation order often requires legal representation, and there is a shortage of available attorneys. Additionally, there is no state or local funding designated for representing people with existing deportation orders who, like Mr. Siriboe, aren’t in Immigration and Customs Enforcement custody.
For many who’ve been deported, their situation becomes even more complicated. Leonel Pinilla, who’d been in the United States for 30 years, was deported to Panama in 2012 due to three convictions for marijuana possession in New York (two from 2005 and one from 2008). Mr. Pinilla’s expungements were subject to the automatic expungements in place. However, his case to have his deportation order thrown out went through a series of complex motions and appeals in the federal court system. Even if Mr. Pinilla is successful, he will face the hurdle of convincing the government to give him the travel documents he needs to return to the United States, a process which can take years.
There are ways to help people like Mr. Siriboe and Mr. Pinilla. The National Immigrant Justice Center is calling on the federal government to create a process that would allow people who have been unjustly deported to return to the United States. A centralized system for returning post-deportation, such as what the group is urging for, would enable Mr. Pinilla to reunite with his family in the United States more quickly, including his partner and stepson who both have disabilities and need his support.
New York State and local governments can also help by offering funding for legal service organizations to assist people with deportation orders. Funding initiatives have been implemented in the past to fill gaps in immigration services, such as the New York Immigrant Family Unity Project. This project is funded by the state and New York City and arranges legal representation for detained immigrants in deportation proceedings. Additionally, the city funds the Rapid Response Legal Collaborative to help detained immigrants who are at immediate risk of deportation.
However, neither of these programs specifically directs resources toward immigrants with existing deportation orders who have either been deported or are living in legal limbo in the United States. New funding could close that gap. The Legislature wrote its new legislation on marijuana to ensure that the communities most affected by racially disparate enforcement felt the benefits of decriminalization. Rectifying the harms of convictions related to the state’s discriminatory regime on people like Mr. Siriboe and Mr. Pinilla must include addressing immigrant consequences.
In conclusion, providing funding to legal service organizations, creating a centralized system for returning post-deportation, and pushing for government action would help close the gap and ensure that people with deportation orders can access their legal rights. Mr. Siriboe’s case highlights the positive effects of challenging deportation orders, but there is still much work to be done to assist other immigrants in similar situations.
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