How Immigration Law Magnifies the Injustice Inflicted by the War on Drugs

Every year, thousands of U.S. residents are deported for drug-related activity, including minor offenses and conduct that states have legalized.

More than two decades ago, Natalie Burke, a legal immigrant from Jamaica, was convicted of transporting and selling marijuana in Arizona. Although that is now a legal business in her state, and despite a pardon that Burke received from Arizona's governor last year, her life has been thrown into limbo by the federal government's determination to deport her based on her drug record. That attempt to exile Burke, which led to a year and a half of immigration detention and years of stress, has caused ongoing anxiety that may have contributed to a stroke she suffered while fighting to stay in the country.

Such cases are not unusual. "Thousands of people in the United States are being deported every year for drug offenses that in many cases no longer exist under state laws," Human Rights Watch (HRW) and the Drug Policy Alliance (DPA) note. From 2002 to 2020, according to a new report from the two organizations, the U.S. government deported more than half a million immigrants whose most serious crimes were drug offenses. Such deportations peaked during the Obama administration but still happen 1,000 to 2,000 times a month.

Under U.S. immigration law, citizenship requires "good moral character," which among other things disqualifies anyone convicted of an "aggravated felony," a category that includes drug trafficking. The requirement also can disqualify green card holders who work in the state-legal cannabis industry. Even a marijuana possession conviction, except for a single offense involving no more than 30 grams, can lead to removal of legal immigrants. That last scenario accounted for more than 47,000 of the deportation cases identified by HRW and DPA.

"The uniquely American combination of the drug war and deportation machine work hand in hand to target, exclude, and punish noncitizens for minor offenses—or in some states legal activity," says Maritza Perez Medina, DPA's director of federal affairs. "Punitive federal drug laws separate families, destabilize communities, and terrorize non-citizens." The report recommends revision of immigration law to "match current state-based drug policy reforms" and "prevent the immense human suffering being inflicted in the name of the drug war."

Cocaine accounted for two-fifths of the deportations analyzed in the report, while marijuana accounted for a third. Cases involving sales represented 41 percent of the total, while 30 percent involved possession or use.

People who commit these offenses are presumed unfit to remain in the United States, and immigration judges often have no discretion to grant relief. That policy affects many people who have lived in the U.S. for years, developing strong ties to the country, raising families, and earning a legal living.

After moving to the United States, Burke obtained a green card, making her a lawful permanent resident. She pursued a career in social work, eventually earning a doctorate, and sent her son to college. But "it was never explained to me that you're really not permanent here," she says. Since 2009, Immigration and Customs Enforcement (ICE) has been trying to deport her based on conduct that has been legalized by 24 states.

One of those states is California, where Oswaldo Barrientos, an immigrant from El Salvador who has been a lawful permanent resident since he was 13, works for a state-licensed business that grows marijuana. Because of that occupation, he was deemed ineligible for citizenship. Also in California, Maria Sanchez, another lawful permanent resident, was disqualified by an "aggravated felony" that involved growing four marijuana plants to treat her arthritis.

In New York, Paul Pierrulus, who has lived in the U.S. since immigrating with his family when he was 5, was detained for two-and-a-half years after he was convicted of selling cocaine to fellow college students. ICE has repeatedly sought to deport Pierrulus, who worked as a strategic consultant at a financial firm for 13 years, to Haiti, where his parents were born but he has never lived.

Miguel Perez Jr., a U.S. military veteran who lived in Chicago for 30 years and was twice deployed to Afghanistan, was deported to Mexico in 2016 because of a cocaine conviction. Three years later, Perez was finally able to obtain U.S. citizenship after Illinois Gov. J.B. Pritzker granted him clemency. But as Burke's case shows, even clemency is no guarantee of immigration relief.

The report tells many such stories of immigrants who were punished twice for conduct that violated no one's rights: first under the drug laws and then, often years later, under immigration law. That combination, HRW notes, "doubly penalize[s] immigrants by imposing civil penalties after they have served their sentences for drug convictions," thereby "subjecting them to often extended detention and ultimately deportation."

Despite local, state, and federal reforms aimed at reducing the harm caused by draconian drug laws, that double penalty remains in place. "Conviction of even the most minor drug offense—for example, possessing a small amount of a controlled substance, including marijuana, where that is illegal—carries devastating consequences that far outstrip the criminal sentence imposed," the report notes.

As a first step toward addressing this situation, HRW and DPA urge Congress to eliminate immigration penalties based on drug-related conduct that states have legalized. They say Congress also should let immigration judges block deportation on a case-by-case basis after weighing "the harms of deportation and evidence of rehabilitation, family ties, and other equities." They recommend several other immigration reforms, including time limits on consideration of drug offenses, a narrower definition of "aggravated felony," elimination of "the controlled substance offense inadmissibility bar and deportability ground," and a ban on "unnecessary or prolonged" immigration detention. The report also suggests drug policy reforms, including decimalization of low-level possession and repeal of the federal ban on marijuana.

Even without legislative changes, HRW and DPA say, the Department of Homeland Security can use its discretion to ameliorate the interaction between drug prohibition and immigration law. Among other things, they say, the department should "refrain from immigration policing actions based on drug-related arrests, charges, or convictions"; "end enforcement actions based on expunged, vacated, and pardoned convictions"; "stop using pleadings or statements in criminal proceedings related to drug use as justification to deny immigration benefits"; and "allow individuals who have been deported due to a drug conviction to apply for reentry through an immigration waiver."

Without such reforms, the report warns, immigration provisions will continue to amplify the injustices inflicted by the war on drugs. "Until the federal government recognizes the discrimination in the enforcement of drug and immigration laws," it says, "the drug war will remain a leading driver of the criminalization of immigrants, as well as their separation from family and the country they often regard as home."