Safe Havens

(B)  All Forms of Marijuana Are Included.  The INS General Counsel ruled that conviction of simple possession of 30 grams or less of hashish or other cannabis products comes within the marijuana exception to the deportation ground.  In the context of the INA § 212(h), 8 U.S.C. § 1182(h) waiver, however, the General Counsel recommended that the INS deny a waiver to someone who possessed an amount of hashish equivalent to more than 30 grams of marijuana leaves. [1108]

The Ninth Circuit has held that a single conviction for being under the influence of marijuana under California Health & Safety Code § 11550 receives the benefit of this exception.[1109]  Because the INS acknowledged that hashish is in the same category as marijuana for purposes of this exception, being under the influence of hashish should qualify for this exception to the ground of deportation.  Moreover, this exception should be applicable to other offenses, such as being under the influence of marijuana or hashish, that involve possession of no more than 30 grams of marijuana.[1110]

[1108] See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992).  See also 21 U.S.C. § 802(16), defining marijuana to include all parts of the Cannabis plant, including hashish.

[1109] Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993).

[1110] See Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2001)(since a defendant convicted of possession of a controlled substance is eligible for treatment under the Federal First Offender Act, it would be absurd to conclude that someone convicted of a lesser offense such as possession of paraphernalia would not).