Immigration and DPD’s New Marijuana Cite & Release Policy

On April 12, 2017, the Dallas City Council voted to implement a new “cite and release” program for certain marijuana offenses.  The policy will take effect on October 1, 2017, and directs Dallas police officers to simply issue a citation and then release people found in possession of less than 4 ounces of marijuana who are not alleged to have committed other crimes.  Previously, such persons would have been arrested.

Let’s take a look at the legal nuts and bolts of the cite and release program, and then consider how this new policy might affect immigrants living in Dallas County.

Back in 2007, the Texas legislature amended the Texas Code of Criminal Procedure to allow for “cite and release” on certain criminal offenses.  Now, all class C misdemeanors (except for public intoxication) are eligible for cite and release treatment, as are certain other offenses including:

  • Possession of marijuana, 2 ounces or less
  • Possession of marijuana, 4 ounces or less but more than 2 ounces
  • Criminal mischief causing pecuniary loss of less than $750
  • Graffiti causing pecuniary loss of less than $2500
  • Theft under $750
  • Theft of service under $750
  • Driving while license invalid

Needless to say, not all of those offenses are, in fact, afforded cite and release treatment.  However, they could be afforded such treatment if the Dallas City Council voted for it, as the council did with the marijuana offenses.  Additionally, under the Texas legislature’s cite and release law (Article 14.06, Texas Code of Criminal Procedure), a person can only benefit from cite and release if he or she resides in the county where the offense occurred.  So, for example, if a person who resides in Oklahoma is pulled over for speeding by a Dallas PD officer and is found to be in possession of 3 ounces of marijuana, that person would not be eligible for cite and release and would be arrested.

From an immigration perspective, one result of the new Dallas PD cite and release program is that undocumented immigrants who would otherwise have been arrested for these low-level marijuana offenses will merely be cited, and thus dodge the controversial “ICE holds”  that lead to the transfer of immigrants from criminal custody directly to immigration custody (for those interested, these ICE holds are currently the subject of federal litigation here in North Texas in Mercado v. Dallas County).  However, that does not mean that such persons will necessarily escape immigration consequences altogether.  If the person cited pleads guilty or no contest to the marijuana offense and receives probation requiring check-ins, they may be encountered by ICE during those probation check-ins (a common ICE tactic), or at a later time when applying for an immigration benefit.  It is advisable that an immigrant who receives a citation under the DPD cite and release program discuss the consequences with an experienced Dallas immigration attorney.

It is important for all Dallas County residents, regardless of immigration status, to understand that the new cite and release policy is not decriminalization of marijuana offenses.  It is simply a change to the procedural aspect of how those offenses are handled.  For immigrants, a marijuana offense can still result in the institution of deportation proceedings, even if the offense was processed as a cite and release.  This can be the case even for those immigrants holding green cards.

Under the immigration laws, a person holding a green card is subject to deportation for any controlled substance offense except a single offense of simple possession of 30 grams or less of marijuana.  Thirty grams is just over one ounce, so even a cite and release for a marijuana offense of less than two ounces could still result in deportation proceedings against a green card holder if the amount of marijuana involved was over 30 grams.