THIRD CIRCUIT RULES DRIVING UNDER INFLUENCE OF MARIJUANA IN VIOLATION OF PENNSYLVANIA LAW IS REMOVABLE OFFENSE

Written by: Taher Kameli, Esq. 

In the face of Congress’ general inability to reach consensus and enact immigration legislation, and President Trump’s anti-immigration policies, immigrants have turned to the judiciary, in particular, the Federal courts, to protect immigrant rights.  However, the Federal courts cannot be viewed as a guaranteed safeguard for immigrant rights in each case. This point was made clear in the May 28 decision by the U.S. Court of Appeals for the Third Circuit in the case of Sambare v. Attorney General of the United States, 2019 U.S. App. Lexis 15741 (3rd Cir. 2019), ruling that driving under the influence of marijuana in violation of Pennsylvania law is a removable offense under US immigration law.  

The case involves Mohamed Sambare, an Ivory Coast native, Burkina Faso citizen, and US lawful permanent resident.  In April 2016, Sambare pleaded guilty to driving under the influence of marijuana, a Schedule I controlled substance, in violation of Pennsylvania law.  As a result of Sambare’s conviction for violating Pennsylvania law, the U.S. Department of Homeland Security initiated removal proceedings, asserting that Sambare’s conviction was for a “violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana” under 8 U.S.C. Section 1227(a)(2)(B)(i).  Both the Immigration Court and the Board of Immigration Appeals (BIA) agreed that Sambare was removable from the United States. Sambare appealed the BIA ruling to the U.S. Court of Appeals for the Third Circuit.

In a unanimous opinion, written by U.S. Circuit Judge Luis Restrepo, the Third Circuit stated, “The sole issue in this case is whether the Court can interpret the word ‘involving’ in such a broad manner so as to construe Sambare’s conviction for violating Pennsylvania’s DUI Statute as a conviction for ‘a single offense involving possession for one’s own use of 30 grams or less of marijuana,’ the effect of which would be to enable Sambare to avail himself of the ‘possession for personal use’ exception to removability contained in 8 U.S.C. [Section] 1227(a)(2)(B)(i). . . . The ‘commonsense conception’ of the phrase ‘possession for one’s own use of 30 grams or less of marijuana’ is that Congress was referring to the crime of ‘simple possession’ of a small amount of marijuana, exempting from the harsh immigration consequence of removal those convicted of a misdemeanor drug crime that is only punishable in Pennsylvania, for example, by thirty days’ imprisonment and/or a $500 fine. . . . In this case, however, Sambare was not convicted of simple possession of a small amount of marijuana – he was convicted of operating a vehicle under the influence of marijuana in violation of the Pennsylvania DUI Statute, which undoubtedly is a more serious offense than simple possession.  The touchstone of laws prohibiting simple possession of marijuana (and the relaxed penalties associated with such laws) is that any consequences of such possession of marijuana are normally personal to the possessor and do not affect a wide population of people in any immediate way. . . . In contrast, Sambare’s crime of conviction – violation of the Pennsylvania DUI Statute – is intended to protect the general public on our roads and highways from persons whose ability to operate a vehicle may be impaired due to the effects of, among other things, marijuana use”. 

Based on the above analysis, the Third Circuit ruled, “Therefore, Sambare’s conviction under the Pennsylvania DUI Statute for driving under the influence of marijuana, to which he pleaded guilty, is a more serious crime than simple possession of a small amount of marijuana, and we decline to interpret the word ‘involving’ in such a broad way so as to construe a conviction under the Pennsylvania DUI Statute as a ‘single offense involving possession for one’s own use of 30 grams or less of marijuana’ under 8 U.S.C. [Section] 1227(a)(2)(B)(i). . . . Accordingly, we will deny Sambare’s Petition”. 

The Sambare case is another example of how the interaction between drug laws and immigration laws may not lead to a favorable result for immigrant rights.  In a different situation, because marijuana use is illegal under Federal law, although legalized by many states, on April 19, U.S. Citizenship and Immigration Services issued a “Policy Alert” that a person who engages in certain “marijuana related activities” may be denied US citizenship.  Given the multitude of non-immigration Federal, state, and local laws that can impact on immigrant rights (not just drug laws), it is important that an immigrant retain competent counsel to navigate the many legal issues that an immigrant can face. Given its many successful cases over many years of representing immigrants, the Law Offices of Kameli and Associates can be the competent counsel that immigrants need on a regular basis.  If you need legal support on any immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for representation.