Agents directed her into a big, open room, where Claudia was told to place her luggage on a table for examination. Officer Torres, a Customs agent with a dark mustache, asked about her planned one-week visit to San Francisco and made friendly small talk as he went through her suitcase and purse. When he noticed her copy of Game of Thrones, he asked about her favorite character. When the 27-year-old said, “Jon Snow,” he smiled and replied, “You know nothing.”
Torres asked Claudia about past trips to the States; in her accented but largely fluent English, she told the agent that she’d previously visited Tennessee, Louisiana, New York and Colorado. At the mention of Colorado, he asked to see her phone. Since the device wasn’t password-protected, he quickly clicked to her photo gallery and began scrolling back several months to her visit from April through June of that year. “Can you do this?” she asked.
“Yes,” he replied, which Claudia accepted without argument. She didn’t feel she had anything to hide.
The agent asked about the lanky guy with brown curly hair in many of her photos. That’s Nate, she told him. Her ex-boyfriend, living in San Francisco. In reality, their relationship was more complicated than that. Claudia and Nate (their names have been changed to protect their identities) had fallen hard for each other when they’d first met three years earlier. Since then, life had thrown obstacles between them, complications that threatened to keep them apart. But they’d always found a way to stay together. That was why she was planning to take a bus north to San Francisco, so she could be with Nate and find a way to make things work, just as they had so many times before.
The agent accepted her explanation and kept looking through her photos, swiping past images she’d snapped of Rocky Mountain National Park, the Denver skyline and the University of Colorado Boulder, until he arrived at three photos she’d taken inside Native Roots, a marijuana dispensary on Boulder’s Pearl Street. Looking at the images of glass display cases filled with edibles and jars of marijuana, he asked if she’d tried any.
“Yes, I tried marijuana in Colorado,” she replied. “It’s legal there.”
With those words, Claudia immediately placed herself in the middle of a growing clash between state cannabis reforms and U.S. immigration law’s unyieldingly austere approach to marijuana. While cannabis may be legal in a growing number of states, it’s still very much against the law for all non-U.S. citizens to use it — even if few people know that. In fact, over the past decade, Immigration and Customs Enforcement (ICE) has penalized and deported more people convicted of marijuana-related crimes than ever before. As a result of the inconsistencies between state marijuana laws and immigration law, immigration lawyers are finding themselves stymied by legal predicaments that don’t make any sense — and their clients are suffering. Husbands are being separated from wives, parents from children, because of activities that in many states are no longer crimes. And foreigners like Claudia are finding their lives changed forever when they simply admit that they tried something they assumed was completely legal.
But Claudia didn’t know that when she admitted to trying marijuana; she still thought everything was fine.
After Torres had finished going through her luggage, two female agents gave her a pat-down and confiscated her belongings, then led her to a locked, windowless cell with security cameras on the ceiling and miserable-looking people of various nationalities lying on bare metal cots. Only then did she realize that something was very, very wrong.
Nate was bewitched by Claudia’s eyes. He was at an ecolodge in a nature reserve in Ecuador in early 2012, partway through an extended solo backpacking trip in South America, when Claudia arrived, on holiday with three of her friends; her dark, kind eyes threw him for a loop. On the surface, the two didn’t fit. He was Jewish; she was Catholic. He wore the same shabby, mismatched outfits he’d favored since his days at the University of Texas at Austin; she sported the chic urban clothes common in her native Santiago. He was in the process of trying to learn Spanish; she hardly spoke any English. But none of that mattered. “We had a language barrier, but it had to be the eyes that put that out of the way,” says Nate. “We hung out so much, looked at each other so much.”
He liked that she laughed at his candid goofiness, that she took care of him when he walked into a door or ate a bad hamburger that made him sick. And she liked his adventurousness, how he’d given up a video-production job that was a step toward his dream of becoming a filmmaker and left Memphis, his childhood home, for this jaunt across South America. Such a bold move was completely antithetical to Claudia’s prim-and-proper upbringing, her careful course to becoming an environmental engineer. But no matter what escapade he suggested as he began traveling with Claudia and her friends around Ecuador — whether it was an early-morning jaunt to a beach or a rafting excursion — she found herself saying yes. “It was crazy for me,” she says. “I was in my normal life, doing the normal things: university, a good career, whatever, and this crazy guy appeared and changed my whole life.”
“It means that whoever has it has to say yes to whatever the other person asks,” says Claudia. “That’s a very important paper in our relationship.”
A year later, when Nate asked Claudia to join him on a short trip to Colombia, she followed the rules and said yes. By that point, she’d broken up with her boyfriend, and the resulting reunion, says Nate, “was like a honeymoon.” They kept saying yes after that, passing the note back and forth as they found one opportunity after another to reunite. Claudia visited Nate in Memphis, staying in his house for three months and taking English classes. He followed her back to Chile, living in Santiago for six weeks. Last year, when Nate decided to move to Colorado, Claudia flew back to Memphis, helped him move, then spent three months with him exploring the Centennial state. Their explorations included visiting a dispensary and sampling the offerings.
“It was like a normal store,” she remembers. “I entered that place, and I told the guy, ‘I am from Chile.’ He said, ‘Okay, no problem; you can show me your passport.’ I got a brownie or something like that.
“I tried marijuana four or five times in my whole life,” she adds.
There had been challenges to their relationship; when Nate had visited Claudia in Chile, for example, he hadn’t been able to find a good job, and Claudia’s strict mother tended to get in the way. So now Claudia decided to try living with Nate in the States, and applied for the environmental engineering master’s program at the University of Colorado Boulder. After navigating the extensive application process, Claudia got in — but she didn’t receive the scholarship she needed in order to pay for the program. Not long after that, Nate got a filmmaking job he couldn’t refuse in the San Francisco area, while Claudia was offered a promising engineering position in Santiago.
All of their hard work seemed to be unraveling, but they weren’t ready to move on. Maybe Claudia could find a way to afford CU and Nate could move back to Colorado. Or maybe she could find an opportunity in the Bay Area. Claudia decided to say yes one more time, and booked a flight to Los Angeles last October.
“In that moment,” she says, “I decided to go to the States and talk with [Nate] and see what happens.”
The most famous example of a marijuana-based deportation might be the U.S.’s failed attempt to bar John Lennon from the country in 1973 because of a past cannabis conviction in England. But it was only later, as the War on Drugs heated up, that U.S. immigration policy became increasingly unforgiving regarding marijuana and other narcotics. These days, any drug offense, save for the possession of thirty grams or less of marijuana, is a deportable crime for non-U.S. citizens, including those with green cards. And any offense involving the sale of marijuana — even just peddling $5 worth of the drug — is considered an “aggravated felony” that triggers mandatory deportation.
It doesn’t matter if the conviction doesn’t come with a prison sentence or is expunged through a drug-court program. It doesn’t matter if the convicted individual can prove that his or her expulsion would cause extreme hardship on U.S. family members, a situation that can be used to stop deportation for other crimes such as assault or fraud. If an immigrant is busted for marijuana or other drugs, they’re likely to be taken into immigration custody and deported without any chance of coming back.
While President Barack Obama has long promised to ease the drastic consequences of the drug war, immigrants convicted of drug crimes have faced increased penalties during his time in office. That’s because of the Secure Communities initiative, a program launched under George W. Bush but expanded by the Obama administration that allows immigration agents access to local fingerprint data banks.
Previously, it was exceedingly difficult for immigration authorities to locate immigrants charged with minor drug crimes nationwide; now they can do so with the touch of a button.
The result is more drug-related deportations than ever before. According to a Human Rights Watch investigation of U.S. government data, between 2007 and 2012, drug-possession-related deportations increased 43 percent, and drug-sale-related deportations increased 23 percent. In all during that period, nearly 266,000 people were forced out of the country after being convicted of a nonviolent drug offense, which accounted for roughly one out of every four criminal-conviction-related deportations. More than 50,000 of those deportations were related to a marijuana conviction.
Garfield Kenault Lawrence was one of those deported. In 2011, ICE officials had detained the 26-year-old Lawrence in Front Royal, the Virginia town where he’d lived since he’d immigrated to the United States with his father and stepmother at the age of eleven. When he was younger, Lawrence had been busted three times for nonviolent marijuana offenses. He’d already done his time — three months behind bars and three years of probation, which he’d completed without a hitch — when immigration agents learned of the convictions and decided they were cause for concern. Lawrence’s wife was seven months pregnant when authorities placed him in immigration detention; after more than a year, they sent him back to Jamaica, a country he hadn’t visited since he was fifteen. Since he’s struggling to earn a living there, it’s up to his wife to save the money for visits to Jamaica. Their son, now four, hasn’t seen his father in two years.
“It just stuns me that someone who’s lived here his entire life can be taken out of this country and there is no coming back,” says Lawrence’s wife, who asked not to be named. “I can understand that if you killed someone or raped someone, but an old marijuana charge that only gets an American three months in jail? How do you get deported for that?”
Lawrence is currently appealing his expulsion based on a 2013 Supreme Court decision that minor marijuana crimes shouldn’t automatically lead to deportation. So far, however, the courts haven’t found in his favor.
“We are at a really interesting time politically,” says Grace Meng, senior researcher at Human Rights Watch and author of the organization’s report on drug-related deportations. “The country is willing to reconsider drug policy and laws, but those same laws passed in the 1980s and ’90s have had really severe immigration impacts — and they aren’t being considered at all.”
According to Alexander Holtzman, a fellow with the Immigrant Justice Corps in New York City who studied marijuana-related immigration sanctions while at Ohio State University’s Moritz College of Law, it’s hard to know exactly how many people are currently being deported because of minor marijuana offenses; most deportation statistics don’t indicate whether a cannabis crime was the cause of someone’s expulsion. (ICE didn’t respond to multiple interview requests from Westword.)
There is some indication that the agency’s stance on marijuana could be shifting, though. In 2014, a year after the U.S. Supreme Court ruled that immigrants convicted of minor cannabis crimes should be given a chance to contest their deportation, ICE released a policy noting that marijuana-possession convictions would no longer be an enforcement priority. But it’s clear that at least until recently, cannabis-related crimes were a main priority for immigration authorities. According to ICE deportation records stored and analyzed by Syracuse University, in 2013 marijuana possession was the fourth-most-common offense associated with deportation — above assault, illegal re-entry or any other drug charge. The sale of marijuana was the twelfth-most-common deportation-related crime. Holtzman estimates that slightly more than 6,000 people were deported that year after being convicted of minor marijuana-possession charges.
ICE’s stringent approach to marijuana offenses is now clashing directly with medical and recreational marijuana programs around the country. While no one knows how many people have been caught up in the conflicts between marijuana reforms and immigration law, experts say the number is likely to be considerable. “Any immigration lawyer who deals with the individual side or family side or business side of immigration is going to come across this issue,” says Katharine Speer, a Denver immigration attorney. “Before, the laws were consistent. Maybe they weren’t good, but they were consistent across the board. Marijuana consumption, production, sale — it was all illegal. But now marijuana reform in places like Colorado has created a lot of confusion for people of all kinds of backgrounds and all different types of immigration applications.”
Speer says she has had to tell clients that they don’t qualify for permanent residency, even though they are married to a U.S. citizen, because they regularly consume marijuana that they legally purchased from Colorado stores. She’s heard multiple stories of foreign entrepreneurs who were eager to invest in Colorado’s booming marijuana industry but couldn’t get the immigrant investor visa necessary to do so because under federal law, their investment would be considered aiding and abetting the trafficking of a controlled substance. She knows of a heating and air-conditioning company specializing in marijuana grow operations that wanted to hire a qualified engineer from India, but because the business’s income came from a federally unlawful source, the company couldn’t sponsor his employment-based visa. Immigrants working in the marijuana industry don’t qualify for green cards because they could be deported for violating federal law, she notes. Similarly, a U.S. citizen in the cannabis business isn’t able to obtain an immigrant visa for a foreign-born spouse or fiancé, because he or she would be considered the beneficiary of illegal drug activity.
What’s more, says Speer, lawyers working with non-citizens have long tried to plead more serious drug charges down to possessing thirty grams or less of marijuana, since that’s the only narcotics crime that doesn’t trigger automatic deportation. But since possessing that much cannabis is no longer a crime in Colorado and elsewhere, she explains, attorneys in those states now have one less tool they can use to keep their clients in the country.
Immigrants in states that have legalized recreational marijuana aren’t the only ones running into problems with ICE officials; marijuana decriminalization efforts in some states are creating legal predicaments, too. In 2014, for example, New York City police officers started issuing a court summons rather than making an arrest when someone was caught with a small amount of marijuana. The idea was to cut back on the city’s sky-high marijuana arrest rate, but agreeing to pay the resulting $100 ticket still counted as a drug conviction in the eyes of immigration authorities. “In New York, when you plead guilty to a marijuana offense in summons court, it is kind of like a factory line, where you are told it’s a non-criminal violation and you pay a fine and that’s it,” says Alisa Wellek, executive director of the New York-based Immigrant Defense Project. “But a lot of people are not being given the advice that this could lead to detention or deportation or prevent someone from getting citizen status. It comes as a shock to a lot of people.”
Immigrants already granted residency in the country need to be found guilty of a marijuana crime to be deported. But foreigners attempting to enter the country or gain permanent residency don’t have to be convicted to get caught in this trap. According to immigration law, admitting to committing a controlled-substance offense is grounds for being deemed inadmissible in the country. In other words, if a foreigner tells U.S. Customs and Border Protection agents that she has consumed marijuana, even in a jurisdiction where it’s legal, like Colorado, the result can be banishment from the United States for life.
On the afternoon of October 8, 2015, Nate was getting ready to leave his San Mateo office so that he could pick up Claudia at the bus station. He hadn’t heard from her since she’d landed, but figured she didn’t have Internet access. Then around 2 p.m., he got a call from Claudia.
“They’re sending me back,” she told him through sobs.
She’d spent much of the day sitting on her cot in the holding cell, crying. She’d learned that others in the room had been detained for a variety of reasons — overstaying a visa during a past U.S. trip, agreeing to marry someone in the States in a mail-order-bride scenario — but that several were being held after admitting to trying marijuana in their home countries. Some had been there for several days.
“I thought about [Nate] and everything,” she says. “All the effort we had made to be together, all the stuff we had to do.... I couldn’t believe that some process or some law that is completely outside of our control won’t allow us to be together.”
Since there was no clock in the cell, Claudia didn’t know how much time passed, but every few hours, agents would call her into an interrogation room and ask her the same series of questions: name, date of birth, country of origin, reason for this visit, and whether or not she’d tried marijuana. “You disclosed to have used [a] controlled substance to Officer Torres earlier today, is this correct?” asked one of the agents, according to an official transcript of one of the interviews.
“No, marijuana isn’t illegal. You could check GPS of where it was used, and I was in a legal place. It is legal in Colorado,” replied Claudia.
“We both pretty much locked on to each other, and then were told no by the U.S. government. That’s pretty hard to move past.”
That didn’t matter to the agents. Eventually, they gave her a choice: She could stay in the United States in a detention center until her case went to trial — a process that could take weeks or months — or she could agree to be deemed inadmissible to the country. She chose the latter option.
“Admitting to the consumption of [a] controlled substance is an inadmissibility [sic] into the United States as well as an illegibility [sic] to obtain a United States visa,” they told her, according to the transcript. “Do you understand?”
“I don’t agree, but I understand,” she responded through her tears.
At around 8 p.m. that night, after spending nearly twelve hours in the detention cell, Claudia was given back her belongings and escorted by two officers onto a plane heading back to South America. When she told flight attendants and the pilot why she was being sent home, they couldn’t believe it. She told the same story to Chilean officers who interviewed her when she arrived at Santiago’s international airport the next day. They laughed and shook their heads at their American counterparts. “Those guys are crazy,” they told her.
When she was finally released, Nate was in the Santiago airport, waiting for her; he’d booked a flight to Chile and beaten her home. He held her as she cried, promising to help figure everything out.
They soon discovered that it wouldn’t be easy. They went to the Chilean Ministry of Foreign Affairs, where officials shuffled them off to the U.S. Embassy in Santiago. But they didn’t find any answers there, either. “No one was helpful,” says Nate. “When you talk to these people, it’s like driving full speed into a brick wall.”
Only by researching matters online did the two begin to find answers. According to Department of Homeland Security policies, border agents were allowed to go through Claudia’s phone without a warrant. And, yes, she could be banned from the country for admitting to having used marijuana in Colorado.
That didn’t leave them many options. Claudia put her plans to go to CU on hold indefinitely, since she wouldn’t be allowed in the country even if she could come up with the tuition. On his last night in Santiago before his scheduled return to San Francisco, Nate sat Claudia down and told her he didn’t know how they could be together.
To Claudia, the decision was devastating but understandable. “One side of me thought, ‘I have this problem, but you can be here with me,’” she says. “But the other side of me understands that everything is more difficult than that. He cannot be with someone who cannot see his family, who cannot see his friends. His life is there, and I cannot be part of his life.”
Always the romantic, Nate had wanted to find a way through this latest entanglement. But this time, the obstacle in their path appeared insurmountable. “We both pretty much locked on to each other and then were told no by the U.S. government,” he says. “That’s pretty hard to move past.”
It’s not easy to return to the United States once you’ve been deemed inadmissible. Just ask Jessica Goldstein about that.
In 2013, Goldstein, a thirty-year-old Canadian from the Vancouver area, was stopped at the border on her way to a Dave Matthews concert in Washington State and asked if she’d ever used drugs. When she told border agents that she used marijuana about once a month, she was detained for six hours and then told she’d been deemed inadmissible to the country. Her boyfriend at the time had recently been asked the same question when he was stopped at the border, and when he admitted to using marijuana, the agents had thanked him for being honest and let him pass. “It just goes to show there is no standard,” says Goldstein. “It is all dependent on their discretion and opinion.”
Because Goldstein has family in the United States and owns a vacation property in Washington, she soon applied for an inadmissibility waiver from U.S. immigration services. To do so, she had to fill out an extensive application, undergo a criminal-background check, submit two character reference letters, present proof of employment, write a letter of remorse and pay a $585 filing fee. Six months later, she received a one-year waiver, after which she had to go through the application process all over again. The second time, she received a two-year waiver. When she has to reapply again, the filing fee will have increased to $930. Between that and the legal costs, she figures she’ll be spending more than $1,200 to try to return to this country. And unless something changes with the law, she will likely have to keep applying for waivers again and again — a life sentence without the possibility of parole.
“It feels wrong,” she says. “It’s an inconvenience, but I am also being treated like a criminal when I didn’t do anything wrong and was being honest. People who are convicted of crimes can apply for pardons, and they just have to do it once.”
Goldstein is far from the only one going through this process. Len Saunders, Goldstein’s immigration lawyer, works in Washington near the Canadian border and says he has “tons of clients” in Canada who’ve been deemed inadmissible because they told border agents they’ve tried Canadian cannabis or legal marijuana in his home state. And he sees the number of people who will need to apply for waivers growing in the years to come. “You are going to see legalized marijuana in Canada,” Saunders says. “This is going to lead to more people smoking it. I think, for a while, I am going to see a booming business.”
If and when the U.S. government softens its stance on marijuana, Saunders believes that admitting to cannabis consumption will no longer be grounds for inadmissibility, pointing to how this country lifted its 22-year-old ban on non-citizens with HIV or AIDS in 2010. “The only difference with marijuana is, they may say they are not going to look back [at past inadmissibility decisions] because at the time, the law said you were inadmissible,” he says.
In the meantime, the people who stand to lose the most from ICE’s continuing inflexibility on cannabis are those who’ve long been unfairly targeted by drug laws: people of color. Xenophobic associations between Mexicans and marijuana led to the drug’s ban in this country in the 1930s; today those who are most likely to suffer the immigration consequences of the federal government’s cannabis prohibition are those from Latin America. While Mexicans and Central Americans account for under half of the total U.S. immigrant population, they comprise more than 90 percent of all non-citizen removals because of criminal matters.
“I think that the brunt of the War on Drugs has been borne by people of color and immigrants,” says Steven Bender, an immigration-law expert at the Seattle University School of Law. “The road to legalization has first benefited the marijuana dealers while failing to redress the past and continuing impacts of drug criminalization on vulnerable groups.”
Some people on the front lines of the U.S. immigration debate think their colleagues in the cannabis movement should be working to solve the inconsistencies between cannabis reforms and immigration law rather than just advocating for legalization. “It doesn’t mean marijuana-law reforms are bad,” says Carrie Rosenbaum, a professor at the Golden Gate University School of Law who’s an expert on immigration. “It just means that thanks to the unforeseen impacts of systematic bias, being color-blind isn’t enough. If you have color-blind drug reform and color-blind marijuana reform, those in the prison system and those getting deported are still going to look disproportionately black and brown.”
Nate felt hopeless, as if they were victims of forces far beyond their control. “You have the federal government and the state governments not playing well together. You have two completely different policies, and because of that, you have people suffering,” he says. “You have the elites creating policies that don’t play well together, and you have us on the ground who are getting fucked over.”
Marrying Claudia wouldn’t help; it’s even harder for non-citizens to get an inadmissibility waiver if they marry U.S. citizens than if they’re single, says Washington attorney Saunders.
Meanwhile, Claudia spent her days obsessing over what happened last October, thinking about the sentence she’d said that changed everything. “Sometimes I feel stupid with myself for saying that I smoked marijuana,” she says. But mostly, she blames U.S. policy for penalizing her for telling the truth. “Sometimes I feel the government and the laws in the United States are so incoherent,” she says. “Sometimes I feel the system in your country is not good at all.”
Because of that system, because of the blemish on her record that could pop up anytime she tries to travel, Claudia feels like a prisoner in her own country. “I haven’t crossed the border at all because I’m scared,” she says. “If I have to leave the country, I will try to leave the country with somebody.” She never wants what happened to her in Los Angeles to be repeated, never wants to be locked away in a cell all alone.
A couple of months ago, though, Nate had a change of heart after talking to his cousin. “With all due respect, you’re just sitting there,” the cousin had told Nate. “You have to try to fix it. If you do that and it’s still hopeless, at least you did something.”
Since then, Nate and Claudia have again attacked the problem from every angle. They’re reaching out to lawyers, activists, government officials and anyone else who might help. Everyone seems to have a different opinion on what they should do. One immigration lawyer refused to help, saying their case was too difficult. Another attorney assured them he could get Claudia back into the United States. “We have our moments of doubt and we have our moments of strength,” says Claudia. “But we are fighting.”
If no legal avenue clears, Claudia might end up applying for a waiver — although she might wait four years to see who’s elected president in 2020. “The two options you have for president this year scare me a little bit,” she says. “I think they are both going to be worse on this specific topic.”
For now, Claudia is thinking of asking Nate to join her in Santiago. She knows how he has to answer. “Nate has the ‘Yes’ note,” she says. “It’s his turn.”