While state legislators throughout the country move to legalize marijuana and expunge marijuana convictions, the case of one New Jersey father now on a path to deportation points to a wrinkle in any state law involving legal weed: Old marijuana convictions will continue to get immigrants deported.

Dane Foster, a 36-year-old father of four from Westampton in Central Jersey, was arrested on December 4 after dropping off his 2-year-old daughter, Alaya, at daycare. “She’s inseparable from him, and she wanted him to take the ride to drop her off at daycare,” said Alexsa Foster, Dane’s wife.

With Alexsa Foster driving and her husband in the passenger seat, three agents from Immigration and Customs Enforcement pulled the couple over after they had dropped their daughter off, saying they had an immigration warrant for his arrest.

Foster is a legal permanent resident who arrived in the United States in 1991, at the age of 11, and received his Green Card in 1997. His extended family left Jamaica years ago, and they now live in the U.S. “Where are you sending him back to?” Alexsa Foster said. “His family is here.”

Dane Foster has three marijuana convictions on his record from 2004, 2006, and 2014, according to his attorney, Afia Yunus. All were misdemeanors handled in municipal court and resulting in fines. Two involved driver’s license suspensions. None resulted in jail time.

But now, Foster is wearing a prison uniform and in lock-up at Essex County Correctional Facility, which holds as many as 800 immigrants at a time under a nearly $3 million-a-month contract with ICE.

In a statement, ICE said, “Dane Foster, a Jamaican national, is subject to removal from the U.S. based on his criminal history.”

The agency also pointed to a statute that reads: “Any alien who at any time after admission has been convicted of a violation...relating to a controlled substance...other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.”

Alexsa Foster is a 28-year-old disabled Army veteran who served in the military for seven years before suffering a debilitating pelvis injury. Beyond her monthly disability payments, she relied on income from her husband’s fledgling lawn care business, which he started with a single push mower before amassing several clients.

“It’s not fair for us, and what I fought for, and who we are, and what we stand for,” she said.

The Fosters met at church and married in 2014. She brought two kids to the relationship; he brought one. The 2-year-old is theirs together. From jail, he calls every day when the kids get home from school and every night before they go to bed.

“[The kids] know him as daddy who talks about God and plays the drums at church and cuts the grass and teaches them to be good people. And to think that he could be taken away for a life that he’s not even living?...It’s crazy to me. I don’t understand,” Alexsa said.

New Jersey’s ICE field office in Newark has made headlines before for arresting Green Card holders. Cloyd Edralin, who had an 11-year-old conviction for possession of an air gun, spent more than three months in jail before avoiding deportation earlier this year.

Yunus, Foster’s attorney, believes ICE is going after Green Card holders in the wake of New Jersey Attorney General Gurbir Grewal’s announcement last month that law enforcement agencies will be mostly forbidden from working with ICE, particularly in handing over released prisoners to federal custody. On the day the directive was announced, ICE issued an ominous warning: "ICE will have no choice but to conduct at-large arrests in local neighborhoods and at worksites, which will inevitably result in additional collateral arrests."

Already this week, Yunus said, she received four calls from Green Card holders in New Jersey arrested by ICE. Two had marijuana convictions on their records.

According to a statement from ICE’s Enforcement and Removal Operations office in Newark, “There are no plans to increase arrests of illegal aliens or Green Card holders with marijuana convictions in advance of legislation that may possibly legalize marijuana.”

A vote to legalize marijuana and expunge marijuana convictions in New Jersey appears to be days or weeks away in the state Legislature, as Democrats who control the state assembly, senate and governor’s office all support the plan.

Even if immigrants saw their records expunged under New Jersey’s marijuana legalization law, that wouldn’t help them avoid deportation. Yunus said federal authorities could still use those records against an immigrant seeking legal status.

“I think this should be a conversation to be had,” Yunus said. “[Because] ICE can still say: ‘Well, this person had a conviction for a drug-related offense, so we’re going to go after them.”

And there’s another way New Jersey’s existing marijuana laws could affect immigrants. As a prior drug offender, Foster is subject to mandatory detention without bond under immigration law. Yunus is nonetheless seeking to ask a judge to exercise discretion and release him on bond pending a hearing on his deportation order.

Immigration courts, though, are backlogged; Foster has yet to appear before a judge or get a date scheduled for a hearing.

Marijuana convictions may particularly affect a certain group of immigrants — those who are not white. According to the ACLU, black people in New Jersey are three times more likely to be arrested for marijuana possession than whites, despite the fact that studies show they use the drug at similar rates. Given the fact that multiple marijuana convictions are deportable offenses, even for legal permanent residents, that would make black immigrants more susceptible to deportation than white immigrants.

While state legislators cannot change ICE’s policy about deporting immigrants with marijuana records, Yunus said they should “exercise some power here in putting pressure on local municipalities not to detain these residents.”

Three jails controlled by Democratic officials in Bergen, Hudson and Essex counties hold about 2,000 immigrants arrested in New York and New Jersey as part of contracts with ICE that together bring in about $6 million a month for local coffers. Yunus said ICE would be forced to limit its arrests of non-violent legal immigrants if localities in New Jersey did not provide the bed space in their jails.

Foster has not told his wife much about life inside the jail, but there have already been two problems: He has yet to figure out how to add her to his list of approved visitors, so she was turned away when she tried to visit him on Wednesday. And, she said, it took eight days for him to be provided a Bible that he requested.

A rally for Foster is planned for Thursday night outside the Essex County Correctional Facility. Alexsa Foster also set up a GoFundMe page to help support her family.

Matt Katz reports on air at WNYC about immigration, refugees and national security.
You can follow him on Twitter @mattkatz00.