Less than a third of a gram of "concentrated marijuana" might get Juan Carlos Rivera deported.
The 24-year-old undocumented Mexican immigrant has been detained by Immigration and Customs Enforcement in the Sacramento County jail for more than four months while he awaits a decision in his deportation case.
ICE is paying Sacramento County $100 a day to house Rivera, who has been convicted of several misdemeanors but no felonies since his parents brought him here illegally from Mexico at age 14.
Rivera was arrested at 2 a.m. April 29 in Calistoga after he'd gotten drunk, fallen off his red Schwinn bicycle and was being walked home by friends.
When a police officer asked him for ID, Rivera told The Bee, he pulled out a zippered pouch containing a marijuana bud and a piece of kief, or cannabis resin. He said a friend gave him the kief in exchange for $10 in gas money.
Rivera's case shows where the Obama administration which deports about 400,000 people a year is willing to go to deport undocumented immigrants with criminal records including misdemeanors, said Kevin Johnson, dean of the UC Davis School of Law.
"This tells you how far the nation's gone in the war on drugs and immigrant drug offenders," Johnson said. "It's not like he's some meth head knocking somebody off to get more meth. He seems to be a relatively low priority compared to someone convicted of a violent crime or one involving firearms."
Rivera's lawyers argue that their client should qualify for prosecutorial discretion, an Obama administration policy that closes deportation cases against undocumented immigrants who haven't committed serious crimes and pose no threat to society.
"This guy was riding his bicycle after smoking dope," said attorney Lori M. Porter. "He doesn't seem like a priority prisoner. He's working, paying into Social Security and paying withholding taxes."
After a routine screening by ICE officers in the Napa County jail, Rivera was taken into ICE custody and placed in removal proceedings May 25 after pleading no contest to the misdemeanor pot charge, said ICE spokeswoman Virginia Kice.
"The presiding immigration judge subsequently ruled that Mr. Rivera was subject to mandatory detention while his deportation case is pending due to another prior drug conviction," Kice said.
ICE exercises prosecutorial discretion on a case-by-case basis, considering a range of factors, including whether or not an undocumented immigrant is a repeat offender.
In a jailhouse interview, Rivera related his journey from Mexico City to California.
After his father was laid off from an auto parts factory, the family hired a coyote to smuggle them into California in 2002, where they joined Rivera's older sister in Cambria.
Rivera said he worked on a ranch to help pay off the coyote, who had charged $2,000 a person. Then he enrolled in school and had finished 10th grade when his family returned to Mexico to be with his mother's aging parents.
Now on his own, the teenager dropped out of school, began washing dishes and working as a bus boy, and started getting into trouble with pot and alcohol. "I was on my own," he said. "I would just go to work, come home, get high and go back to work."
He said he spent 15 days in jail for misdemeanor marijuana possession in San Luis Obispo County, then moved in with an uncle in Calistoga to try to change his life.
"I worked construction and landscaping, did hotel work and was working as a bus boy and a prep cook at two different restaurants when I was arrested," he said.
He said his Napa County public defender, Cate Beekman, advised him to plead guilty to concentrated cannabis because he would spend less time in jail than if he asked for a trial. She told him that, given his unlawful entry and previous record, he was going to be deported either way, Rivera said.
His lawyers have tried to get the cannabis charge dropped on the grounds Rivera had ineffective counsel. But Napa County District Attorney Gary Lieberstein said in court documents that just because Rivera's decided he didn't have concentrated cannabis, he can't just change his mind. And his lawyer had warned him "he would be deported if he entered a plea to the charge of concentrated cannabis," Lieberstein said.
Rivera's lead attorney, Daniel Karalash, has filed a motion with the U.S. Department of Justice's Executive Office for Immigration Review arguing that if Rivera hadn't received ineffective counsel, he would have either been acquitted or convicted of a lesser charge.
Along with prosecutorial discretion, Karalash argued that had he not pleaded guilty, he might be out of jail and qualify for the Obama administration's Deferred Action for Childhood Arrivals program.
The program was designed to grant work permits and temporary residency to undocumented immigrants who came to the United States before age 16, have lived here continuously for at least five years, are in school, have graduated from high school or have an equivalency degree.
They can't have any felony convictions, significant misdemeanors, multiple misdemeanors, or otherwise pose a threat to public safety.
ICE would not speculate on Rivera's chances of getting deferred action, which isn't intended for students already in removal proceedings.
"He's stuck in a Catch-22," said Porter. Rivera is working toward his GED but doesn't qualify for deferred action while he's in jail.
"I'm praying to God I'm through with marijuana," Rivera said. "It took my life away. I would like to go to college for Bible studies and cooking, and maybe I can help other people quit, too."