Navigating Immigration Consequences for Marijuana
In recent years, significant shifts have occurred in the United States regarding marijuana laws, with various states legalizing or decriminalizing its use. While these changes may lead some, including noncitizens, to believe that they can safely use marijuana in accordance with state law, the reality is far more intricate. This article delves into the complex intersection of state marijuana laws, immigration consequences, and their impact on individuals, regardless of their state's stance on the drug.
Marijuana's Federal Status: A Pivotal Factor
Despite state-level legislative changes, marijuana retains its federal classification as a Schedule I controlled substance under the Controlled Substances Act (CSA). This categorization aligns marijuana with drugs like heroin and LSD, labeling them as substances lacking "currently accepted medical use and having a high potential for abuse." This federal prohibition on marijuana supersedes state laws, extending across the entire United States.
The CSA definition of marijuana changed in 2018, with the removal of hemp (cannabis containing no more than a 0.3% concentration of delta-9-THC—the psychoactive component) from the definition. Otherwise, the status of marijuana as a Schedule I substance has remained unchanged for more than 50 years.
What activities are prohibited under CSA?
Due to its status as a Schedule I controlled substance, the CSA prohibits the manufacture, distribution, dispensation, and possession of marijuana except in federal government-approved research studies.
Anyone growing, marketing, or distributing marijuana is likely violating multiple federal laws. Someone can run into problems with the CSA even if not directly involved with the marijuana industry. Providing services to a business that operates under state marijuana laws can violate federal law. If someone runs a janitorial service, for example, and has a client who operates a dispensary, they might be profiting from illegal drug trafficking.
The CSA also makes it illegal to “knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances."
Who is At Risk: A Broad Spectrum of Noncitizens
Understanding the implications of marijuana use on immigration status is paramount for a wide array of noncitizens, spanning from lawful permanent residents (commonly referred to as "green card holders") to temporary visitors, such as tourists, students, and foreign national workers. While specific categories of noncitizens may enjoy more legal protections, any involvement with drugs, including marijuana, can lead to severe immigration consequences.
Inadmissibility and Removability: The Legal Framework
Due to the continued federal illegality of marijuana possession and usage, it can be used against noncitizens, regardless of whether they have engaged in any criminal activities. Even if marijuana consumption is in accordance with state laws permitting medical or recreational use, it can serve as grounds for immigration penalties.
Immigration law dictates that foreign nationals convicted of offenses linked to controlled substances, including marijuana, may face removability—meaning they can be subject to deportation proceedings.
Furthermore, individuals convicted of or admitting to committing the essential elements of a controlled substance offense are deemed inadmissible to the United States. This designation bars them from obtaining visas, gaining entry to the U.S., or acquiring lawful permanent resident status (i.e., a green card). It can also result in denied status extensions and inadmissibility of certain green card holders who traveled abroad and are considered applicants for admission.
Understanding the terms "Conviction" and "Admission" in the Immigration Context
It's crucial to note that, from an immigration law perspective, an individual can be considered "convicted" under a broad range of circumstances. This encompasses pretrial agreements, deferred judgments, and first-offender programs, which, despite leading to charge dismissals under state law, might still be seen as criminal convictions under immigration law. Similarly, even without a formal conviction, admitting to the essential elements of a controlled substance offense, whether under state, federal, or foreign law, can render a foreign national inadmissible.
Good Moral Character and the Marijuana Industry
Establishing good moral character is a prerequisite for U.S. naturalization. In 2019, the U.S. Citizenship and Immigration Services (USCIS) clarified that involvement in the marijuana industry, regardless of legality under state or foreign laws, may hinder individuals from establishing good moral character in the eyes of immigration authorities.
Specifically, USCIS issued a policy alert stating that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing a good moral character for naturalization, even if such activity is not unlawful under applicable state or foreign laws.
Limited Waiver Options for Inadmissibility
In cases of inadmissibility resulting from controlled substance offenses, there are limited waiver options for individuals seeking to adjust their status or obtain immigrant visas. These waivers specifically apply to violations involving personal possession of 30 grams or less of marijuana and necessitate demonstrating that denying entry to the U.S. would cause extreme hardship to a U.S. citizen or permanent resident child, spouse, or parent—a stringent standard that may not apply universally.
Nonimmigrant Waivers: A More Flexible Alternative
Nonimmigrant visa applicants may explore the possibility of applying for waivers under INA § 212(d)(3), which entail more flexible criteria and do not mandate demonstrating hardship to qualifying relatives. Nevertheless, these waivers are discretionary and do not pave the way for future green card applications. Additionally, their processing times typically exceed six months.
A Word of Advice
If you are a noncitizen, refrain from any of the following activities:
use, possession, manufacture, distribution, and dispensation of marijuana or cannabis
employment in the marijuana industry directly or indirectly
providing any services to a business that involves marijuana
leasing property for manufacturing, storing, or distribution of controlled substances.
If you are involved in any of the above activities, you may jeopardize your immigration status if you are a noncitizen.
Bear in mind these immigration consequences and use common sense. If confronted by a law enforcement officer, you have the right to remain silent and request to speak to an attorney. Your admission of a controlled substance violation to an immigration official, law enforcement, or a doctor at an immigration medical exam may be used against you in immigration proceedings. Photos of you and cannabis that may be found on the internet may also be used against you.
Conclusion: Seek Legal Counsel
In summary, the interplay between state marijuana laws, federal immigration consequences, and individuals' legal status is intricate and often precarious. Therefore, individuals, particularly noncitizens, are strongly encouraged to seek guidance from experienced attorneys capable of tailoring advice to their unique circumstances.