Do Not Put That in Your Pipe and Smoke It

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Written By admin at Saturday, July 28th, 2012

If you’re a permanent U.S. resident and you get busted with 30 or fewer grams of pot, the government can’t deport you.

Here’s what the law says:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

That’s our emphasis added to the exception at the end.

Luis Benjamin Martinez-Mercado, a 28-year-old native of Mexico, was brought to the U.S. illegally in 1987, when he was four years old. He got married at the age of 15 (the legal age in Utah, where he was living) to a girl he got pregnant, quit school and went to work.

In 2007, five years after Mr. Benjamin Martinez-Mercado became a legal permanent resident, police in Utah caught him with an apple retrofitted for pot smoking, according to his lawyers. (You poke a hole in the top, and on the side, they meet somewhere in the middle, and voila.) The fruit had residue from use. For this, he was charged with possession of marijuana and possession of drug paraphernalia.

LBers, is he deportable?

The 10th Circuit Court of Appeals ruled Friday that he was, following in the footsteps of two immigration courts that considered the case. The 10th Circuit held that Mr. Martinez-Mercado’s two convictions — for possessing the apple pipe and some marijuana  – couldn’t be considered a singe offense, so the exception didn’t apply.

Steven R. Lawrence Jr., a Salt Lake City-based lawyer who represents Mr. Martinez-Mercado, had argued that the two convictions stemmed from a single act — his possession of 30 grams or fewer of marijuana — and thus should be considered a single offense for the purposes of immigration law.

“We cannot construe ‘single offense’…as applicable to more than one controlled-substance conviction,” the 10th Circuit ruled.

Mr. Martinez-Mercado was deported while his appeal was still pending, Mr. Lawrence said.

“We had a real hard time with this case,” Mr. Lawrence said. “If you get arrested with rolling papers, that’s paraphernalia. Or even a soda can.”

The Justice Department declined to comment.

Mr. Martinez-Mercado had been in trouble previously for failing to pay child support after separating from his wife and for traffic offenses, but the courts considered only the drug-related convictions.

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