Want to Vacate and Expunge a Cannabis Conviction in IL? If You Aren’t a Citizen Hit the Pause Button

In the year since Illinois legalized small amounts of cannabis, a lot has been written about provisions in the law giving people convicted of certain cannabis crimes a chance to petition a court to vacate and expunge their convictions.

What these news stories usually neglect to discuss is that for those who are not U.S. citizens, the immigration relief they’re hoping to get (by vacating these convictions) may not exist.

Recently, I was contacted by two individuals wanting to vacate their cannabis cases in order to map out a path to citizenship.

Two Non-Citizens, One Law, Two Results

One individual, who I’ll refer to as Noel, is undocumented. As a young child, Noel’s family crossed the Southern border without proper papers. In 2012, Noel was convicted of possessing a small amount (now legal) of cannabis. Fearful his conviction had derailed his chances of receiving protection under President Barack Obama’s 2012 Executive Order, Deferred Action for Childhood Arrival (DACA), Noel never applied. Today, Noel is engaged to marry a U.S. citizen.

The other individual, who I’ll refer to as David, was a legal resident when, in 2002, he was arrested on two separate occasions and charged with possessing small amounts (now legal) of cannabis. He was just 17. Several years later, immigration authorities successfully deported David. The reason why David was deported: he had one too many cannabis convictions on his record.

Padilla v. Kentucky: The Before and After

The odds of Noel and David benefiting from the state’s cannabis expungement provisions turn on one simple factor: were their cases decided before or after the U.S. Supreme Court’s ruling in Padilla v. Kentucky, a case decided on March 31, 2010.

In Padilla, the Supreme Court held for the first time that criminal defense attorneys had a constitutional obligation to notify their clients of the immigration consequences of pleading guilty to a crime.

Prior to Padilla, there was no common practice or ethical obligation in Illinois for attorneys to share this information with their clients. Today, criminal defense attorneys now face accusations of ineffective assistance of counsel if they fail to do so.

Unfortunately, the Supreme Court later held that its ruling in Padilla only applies to future cases. In other words, the ruling in Padilla does not apply to cases that occurred before March 31, 2010. Because Padilla can’t be applied retroactively, David and Noel face different outcomes.

States Don’t Control Immigration Policy

Because cannabis is still an illegal drug under federal law, these cases must be vacated for a reason other than Illinois’s decision to legalize cannabis. Otherwise, federal immigration authorities won’t recognize that these convictions no longer exist.

The only way to do this is to ask an Illinois court to vacate the conviction (or guilty plea) due to a constitutional or procedural error in the criminal case. The most persuasive argument to make, post-Padilla, is showing that the defendant’s attorney failed to discuss the immigration consequences of pleading guilty to a drug offense before the individual pled guilty. Had such information been provided, the argument goes, s/he would not have agreed to pled guilty but would have gone to trial.

Of course, this argument only works if the following factors exist: 1) the resolution of the criminal case took place after March 31, 2010; 2) the attorney failed to discuss the immigration consequences of pleading guilty to a crime; and 3) the defendant voluntarily pled guilty to the cannabis charge(s).

Thus, although David satisfies two out of three factors, since his cases were resolved several years prior to Padilla, expunging his cases will not help to resolve his current immigration status.

Noel, on the other hand, may benefit from vacating his cannabis conviction provided he can: 1) convince a judge to vacate his conviction on constitutional grounds (ineffective legal assistance), and 2) resolve his “undocumented” status.

Conclusion

There is nothing scarier than when criminal and immigration law collide. This is especially the case for legal residents, who are frequently unaware of the legal jeopardy they face. For legal residents, being “young and dumb” (which aptly describes most teen and young adult defendants) can get you deported.

I’m sure David had no idea of the legal jeopardy he was in following his second cannabis arrest. No doubt, the seriousness of his situation did not sink in until he was served with deportation papers.

In conclusion, before seeking to vacate your cannabis case, please consult a knowledgeable attorney who can tell you whether immigration authorities will accept the fact you no longer have a cannabis conviction if you get it vacated.