Javier, whose name has been changed to preserve his privacy, had no idea that a decades old marijuana conviction would come back to haunt him. New York state’s new law, won’t affect his case because his conviction stems from an out-of-state arrest.
New arrests, old convictions and legal Catch-22s still face NY immigrants.
December 10, 2019
In the middle of a routine check-in with his immigration case officer in Manhattan, Javier*Some names have been changed. pulled out his cell phone and sent a text message to his pregnant wife.
“Babe, it’s not looking good. They’re going to deport me.”
Javier had been on an order of supervision for nearly a decade, stemming from an old marijuana charge of misdemeanor possession of under a quarter of an ounce in another state.
The officer asked how long he had been on supervision.
“I said, ‘A long time. When is it going to be over?’ and he said, ‘Oh, it’s today. And you’re going to get deported.’”
Fighting tears in his eyes, that was the moment he told his wife he would not be coming back. The officer told him to put his phone away.
In the summer of 2019, Governor Andrew Cuomo signed into law policies that would ease the consequences of low-level marijuana charges and open avenues for the expungement and destruction of records and nullification of prior judgments.
After decades of continued enforcement against recreational marijuana use, Gov. Cuomo acknowledged the disproportionate negative consequences that resulted from a conviction, which largely affected vulnerable communities.
"Communities of color have been disproportionately impacted by laws governing marijuana for far too long, and today we are ending this injustice once and for all," he said.
The demand for reform came to a head as arrests skyrocketed across the state. These “draconian penalties” impacted tens of thousands of people's freedom, education, family life and ability to work, but the new changes do not protect all New York residents equally.
The law is lauded as a step toward progress, but it does not eliminate marijuana arrests—meaning immigrants and others can still get busted for low-level possession. And while it creates a mechanism for expungement, New York state can't force federal authorities to clear the records they already have.
And as Javier's case illustrates, each immigrant's case is complex: His out-of-state arrest wouldn't be covered by the New York state law. Other immigrants could still be harmed by the expungement law if it wipes out the record of what happened after an arrest.
Six months pregnant at the time, Javier’s wife fought to get her husband out of detention. One of her biggest fears was having to give birth to their son without him.
Arrests will still happen
The law’s reduced penalties, which vary between fines of $50 to $200 for unlawful possession of up to two ounces, still count as deportable crimes at the immigration level. While marijuana remains illegal in the state, the potential of arrests still exists.
“Even if you have lawful status, your immigration status is never a given,” said Casey Dalporto, staff attorney at The Legal Aid Society. “They don't really understand that immigration still very much considers this a drug offense and they take any drug offenses very, very seriously and will at any opportunity use that as grounds to deport someone without mercy.”
New York State’s decriminalization law will probably not be of great benefit to immigrants, said Dalporto. She says the new law is ultimately a misnomer because marijuana remains illegal in the state. What’s more, a violation does not mean, in the eyes of the federal government, that a crime has not been committed.
“It's a distinction that's lost outside of New York as well in any other jurisdiction,” she said. “We love to brag that we've decriminalized marijuana, but for all intents and purposes, we haven't.”
Fines as low as those found in the state’s law can render immigrants ineligible for a green card and naturalization. Some longtime residents may even find themselves labeled as deportable. For undocumented immigrants, any violation is effectively a permanent bar to legal status.
This is not the first time that the state has pushed to ease the consequences of the use of recreational marijuana. In 1977, Gov. Hugh L. Carey decriminalized the substance for the first time in New York State history. A $100 fine would be imposed on possession of up to 25 grams of marijuana. But historically, decriminalization has done little to prevent arrests. There are doubts this new law will do much more to reduce tough enforcement by police.
“For the most part, they're low-income people of color and they will, as a result, be targeted by police practices in places like New York City.”
“The law in New York State still leaves a lot of room for them to wiggle around,” said Robert Gangi, Executive Director of the Police Reform Organizing Project, an organization that advocates for the reshaping policing tactics in New York City. “We don't have a hard law in New York state which says it is now legal for people who are 21 years old, whatever their position, to smoke marijuana without fear of arrest.”
In New York City, from January 2006 to September 2019, there have been more than 443,000 marijuana possession arrests across the five boroughs. Black people and Hispanics make up more than 86 percent of these arrests. Immigrants are bound to be caught up in these enforcement practices.
And although arrests have slowed in New York City, that has not been reflected across the state. After a seven-year period when arrests dropped by nearly half, since 2015, arrests for marijuana possession increased by nearly 175 percent to 2018.
From 2002 to 2018, nearly 500 removals were conducted with marijuana possession listed as their most severe criminal conviction in the state of New York. Another 1000 removals were for marijuana-related offenses.
“For the most part, they're low-income people of color and they will, as a result, be targeted by police practices in places like New York City,” said Gangi. Immigrants “get f**ked,” he said.
“There is a wide array of policies here in New York City that are designed to protect our immigrant communities,” said Sonia Lin, deputy commissioner and general counsel at the Mayor’s Office of Immigrant Affairs. These include privacy and confidentiality policies “to policies that apply to the New York Police Department and the Department of Corrections that sharply limit cooperation with immigration enforcement except in cases involving public safety threats.”
But Gangi sees continued policing of marijuana as the central issue, something that politicians and local law enforcement are reluctant to tackle.
“What politicians do and police departments do is tinker and tweak the problem but make no significant changes,” he said, about the expungement and decriminalization law. “As long as you're arresting people and you're engaging in broken windows policing and targeting low-income people of color, you are inevitably putting undocumented immigrants in danger.”
Even though his future is still unceartain, Javier keeps building a life in New York State. If he's deported, he says, he doesn't have anything to go back to. He's spent a lifetime away from the country he was born in.
Old cases could still haunt
Immigration law’s definition of a conviction relies on the premise that an admission of facts under oath resulted in a punishment. As a result, when facing an immigration judge, the expungement offered by the new state law would mean little.
“The state can't change the fact that you plead out loud,” said Mark. “The state can't change the fact that at the time this happened you had to pay court costs, or you had to pay a fine or you did community service.”
Reporting has shown that it is not only undocumented immigrants who are at risk but any non-citizen. Javier, for example, was a permanent resident at the time of his arrest for marijuana.
In the early 2000s, Javier, a permanent resident, received a call at his place of work. Marijuana had been found in a sublet room when police came to search the apartment he was renting.
“I ended up taking the rap for it, pretty much,” he said. “They called me at work, and they were like do we pick you up or do you come and turn yourself in.”
“Expungement is never going to be considered an erasure of your record for immigration purposes."
His lawyer advised him to plead guilty to a misdemeanor charge for marijuana possession. Javier had no idea that this arrest would have further implications years later. But it seemed like the best option to sort things out and to quickly get out of jail.
“All the lawyer came and told us was like you plead guilty to this and you just walk out,” he said. “There was no telling me that I was going to be in this position after so many years later.”
Years later, when Javier was returning from a trip abroad, he was detained at a port of entry and questioned about his brush with the law. He was held in a room for six or seven hours. As a result, his passport was taken away and he was given an order of supervision. He later missed one of his court dates, further complicating his case.
When Javier was arrested nearly two decades ago, law enforcement officials took his fingerprints at intake. This potentially set off a complex string of data sharing processes that may have resulted in his detainment at the port of entry.
Biometric and other identifying information for immigrants at risk for deportation can end up in a federal database through State Identification Bureaus — like the New York State Division of Criminal Justice Services.
The only thing that kept him going was his family, said Javier. During a routine check-in with immigration, an officer let him know that he would be deported. After months in detention, Javier was released.
Databases with long memories
Since the state law came into effect in August, those arrested for low-level marijuana possession are no longer fingerprinted, meaning DCJS would have no record of those arrests. But prior records could still exist in Immigration and Customs Enforcement databases.
“Expungement is never going to be considered an erasure of your record for immigration purposes,” said Dalporto. “They still have records of it. They keep their own database.”
The Federal Bureau of Investigations collects biometric and biographical data in the Integrated Automated Fingerprint Identification System (IAFIS/NGI), which has an established interoperability agreement through Secure Communities with ICE’s Automated Biometric Identification System, or IDENT. This means ICE has access to, and in some cases can acquire, information from the FBI database.
According to a 2008 memorandum of understanding for Improved Information Sharing Services, data retention policies are governed by each party’s records control schedules. Records in IAFIS are retained until the subject of the records is 99 years of age or until seven years after notification of death. Automated criminal history record information, or rap sheets, are retained permanently.
If there is a match against fingerprints in IDENT, ICE makes an immigration status determination and sends that to the FBI and local law enforcement in the issuance of a detainer. ICE may also open an investigation and initiate removal proceedings. These queries and responses are kept in ICE’s Alien Criminal Response Information Management System (ACRIMe) for 75 years.
Additionally, ICE retains records they generate from the FBI’s National Crime Information Center, which includes robust nation-wide local criminal justice data, for the same period. The immigration agency can also access local data through the National Data Exchange System (N-DEx).
“New York state can make a request that the FBI also expunge and seal their records. But, they don't have to. They're under no legal obligation to, and so certainly ICE is not going to do that.”
The only way records can be removed from IAFIS earlier than the prescribed schedule would be by the request of the submitting agency or by court order, but records retained in ACRIMe and IDENT do not carry that provision.
“Under the law, DCJS notifies the FBI to remove fingerprints from its database after DCJS seals marijuana convictions as required,” said Janin Kava, director of public information at DCJS. “DCJS does not share fingerprints with ICE and cannot speak to data-sharing agreements between the FBI and ICE.”
“New York state can make a request that the FBI also expunge and seal their records,” said Dalporto. “But, they don't have to. They're under no legal obligation to, and so certainly ICE is not going to do that.”
Immigration and Customs Enforcement did not respond to a request for comment.
The National Archives and Records Administration regulates and approves retention periods for federal agency records. Criminal history records housed in federal databases have a legal value to the agency submitting to a retention schedule review by NARA. Before proposing a retention period, government agencies must take into account statutes of limitation and the potential for fraud, among other criteria.
A change in state laws would generally not play a role in making a final determination of the lifespan of the data in question.
“Federal agencies and NARA are not in a position to evaluate the laws and policies of every state in scheduling the disposition of federal records,” said Laura Sheehan, media communications staff at NARA.
Javier said he took the rap for marijuana found in a sublet in an appartment he was renting. The consequences of that conviction have followed him to this day.
Dilemma in the documents
Even if immigrants are not arrested and fingerprinted and their charges have been expunged, immigration officials can still find out about past offenses.
Applications for adjusted status, permanent residency and naturalization include specific questions that can cause issues for immigrants of any status.
An I-485 form, used for permanent residence and status adjustment, asks, “have you ever pled guilty to or been convicted of a crime or offense (even if the violation was subsequently expunged or sealed by a court, or if you were granted a pardon, amnesty, a rehabilitation decree, or other act of clemency)?”
Questions asking if applicants have ever been arrested, cited, charged or detained for any reason or have committed a crime of any kind for which they faced no consequences put immigrants in a delicate situation.
“They have kind of this Catch 22 situation: either I perjure myself and I say I've never been arrested, and I've never been ticketed, and I risk that somehow immigration does know because we do find that in some cases,” said Mark. “Or I tell the truth.”
These questions have become more and more specific with each iteration, according to Mark.
In an ironic twist, immigrants depend on the existence of these records to be able to prove the outcome of their cases, even if they carry a heavy risk of working against them.
The state’s marijuana law grants the ability to destroy records of marijuana convictions, but if the records no longer exist there is no way to show immigration courts the resolution of a run-in with law enforcement.
“From our perspective, right now, we don't think that that's a good idea for immigrants because when there are no records, you can't ever prove that you could be eligible for any of these things that could help you,” said Mark.
There would also be no way for immigrants who received convictions prior to the new law to petition to have their charges vacated, which may be recognized by immigration courts.
To vacate a prior marijuana charge, immigrants would need to show that the conviction violated some state law, the state constitution or the Federal Constitution. A judge can then overturn the conviction, considering it never legally valid, to begin with. These overturned convictions are not considered crimes for immigration purposes.
“They put me in the same cell that they ship them away. Pretty much, you know, I was like, that's it, you know?”
“You can go in front of a judge and say, ‘Listen, I know my conviction was expunged, but I could still be subject to these harsh immigration consequences and I want you to examine whether or not everything in the underlying proceeding actually was within the bounds of the law,’” said Mark.
The vacatur process introduced in New York’s new decriminalization law, on the other hand, allows people to argue that they’ve suffered collateral consequences, said Dalporto. This can include exclusion from public housing and work, for example.
“You could do either if you're a non-citizen,” said Dalporto. “Obviously the former is much better because that will actually be held up in immigration court later, whereas the collateral consequences vacatur probably won't.”
Javier was laying in cell months after his initial detention at his check-in when he heard officers call his name. They asked for his things to be retrieved. Javier was regularly being taken to court during his detention, so he expected that it would be another standard hearing, but he noticed something was different this time.
“They put me in the same cell — because going back to court you observe what's going on — they put me in the same cell that they ship them away,” he said. “Pretty much, you know, I was like, that's it, you know? Until they just let me go.”
Javier’s wife received a call from someone she didn’t know telling her he was finally coming home. He was released in time to be present for the birth of his child, something that his wife dreaded having to do without him.
Javier’s case is still pending. He’s working on changing his status, but the feeling of unease still lingers. It’s difficult for him and his family to move on because his detention reminded them of how precarious his life in New York state can be.
“It's torture, you know. Like, what do you build? Do you really want to build a life for them to take it away with one decision?”