Legalization of Marijuana and it's Immigration Implications
As more and more states being to legalize the use of marijuana, it is clear that marijuana use is slowly becoming more accepted. As of October 2019, 11 states and the District of Columbia have officially legalized marijuana. However, disclosing that you have used marijuana to immigration officials can have very serious consequences to non-citizens, both immigrants and nonimmigrants alike.
Despite the normalization of marijuana, marijuana possession is still illegal according to federal law regardless of whether it is legal on the individual state level. There are no medical exceptions for marijuana possession in federal law.
The U.S subscribes to a unique idea of governance called federalism. Federalism, or shared sovereignty, is the division of power between the state and federal level. This idea of federalism was based on the belief stemming from U.S independence that an overly strong federal government might lead to tyranny, and that each state should have a say in its own governance to protect liberties. Since then, the political and legal landscape changed tremendously. The federal government has grown in power, but the idea of individual state laws still exists. A conflict between state and federal law is usually governed by the Supremacy Clause in Article VI of the U.S Constitution. In essence, when there is a conflict, the federal law pre-empts the state law and is controlling.This is the case when it comes to marijuana. In 1970, Congress passed the Controlled Substance Act which categorized marijuana as a schedule I substance. Under this Act, any use, possession and cultivation are considered a federal crime. However, federal agencies, such as the Drug Enforcement Administration (DEA), has discretion their enforcement policies. Currently, the DEA has publicly announced that enforcement on the individual level is not a priority, and will focus its resources targeting illegal growers. Despite this discretionary policy decision, marijuana use, possession, and cultivation are still illegal on the federal level. As immigration is dictated by federal law and based on the Supremacy Clause of the Constitution, federal marijuana laws control as opposed to state law. As such, non-citizens must be aware of the consequences of marijuana related activities.
According to immigration laws, noncitizens may be deported and barred for the conviction of a state or federal drug offense. However, a conviction of a one-time possession of 30 gram or less of marijuana is excusable and will not result in deportation or immigration bar. Non-citizens may be inadmissible if they offer an “admission” or confession of conduct although they may not be deported on the admission alone. A mere mention of marijuana use is not enough for an admission/ confession by immigration law standards. In order for the declaration to be considered an admission, “the officer must provide the applicant the text of the specific law from the jurisdiction where the offense was committed; the officer must provide an explanation of the offense and its essential elements in ordinary language, and the applicant must voluntarily admit to having committed the particular elements of the offense under oath”. In addition to a conviction and admission, a finding of addiction or abuse to marijuana currently or within the past year is a ground of inadmissibility.
A non-citizen who plans to adjust status or plan to go through consular processing should avoid possessing, using, or working with marijuana. A non-citizen who admits to possessing, using, or working with marijuana will be considered to have made an admission of committing a federal crime. The non-citizen’s application will either be denied if s/he refuses to answer the question or will be inadmissible if s/he knowingly answers falsely. As such, avoiding marijuana is the best policy for those seeking to adjust status or plan to go through consular processing.
For legal permanent residents who hope to naturalize, questions regarding marijuana can become a dangerous trap. Naturalization requires that the immigrant has established good moral character for the previous five years. Admission of marijuana possession or related conduct can trigger a statutory bar to naturalization if the conduct was within the past five years by not meeting the good moral character period requirement. The legal permanent resident would have to re-apply once a new five-year period can be established. Legal permanent residents who have admitted to marijuana possession and related conduct should refrain from leaving the country as the person may be considered inadmissible if they try to return to the United States. Legal permanent residents should err on the side of caution and refrain from marijuana use, possession, or employment.
For non-immigrants hoping to come to the U.S on a temporary visa such as a F visa or on the visa wavier program, disclosure of marijuana use or possession could adversely affect your goals. Non-immigrants seeking to enter the U.S must prove that they are admissible. As such, non-immigrants may be questioned at the consular interview and/or at the border. Both consular and Customs and Border Protection (CBP) officers have broad discretion to deny entry to the U.S. Consular officers and CBP officers can not only deny entry if there is a disclosure of marijuana use, possession, or affiliation, but they can also potentially ban the non-citizen from future entrance. Due to their discretionary authority, the disclosure of marijuana use does not even have to meet the rules of “admission” stated above in order for the officers to deny entry or ban applicants.
For example, according to the L.A Times, Bill Powers, a Canadian seeking entry to the U.S, was banned when he admitted to having smoked marijuana. While heading to a music festival in Washington, he was stopped at an immigration checkpoint where officers asked him a variety of questions. During questioning, Powers admitted to have smoked marijuana years ago. Based on this information, the CBP officers were able to ban powers from the U.S. To learn more about the story, click here.
In another case, renowned Olympic snowboarder Ross Rebagliati from Canada was banned from the U.S when he admitted to using marijuana on late night Jay Leno Show. Ross Rebagliati is a famed Canadian snowboarder who won the gold medal in the 1998 Olympic Winter Games. He frequently stays in the U.S to train and compete. Rebagliati runs a marijuana dispensary in Canada where it is legal. Rebagliati has also publicly admitted to using marijuana. In 2012, Rebagliati was denied entry at the U.S border and faced a general ban from entering the country due to his associations with marijuana. To learn more about this story, click here.
According to the Financial Post, even noncitizens who merely invest in the marijuana industry and does not personally use or possess marijuana can face legal consequences when it comes to immigration. The Financial Post reports that a Canadian, who was traveling to Los Vegas to attend a major marijuana business conference and tour a marijuana facility that he or she had invested in, was banned from entering the U.S for life. The investor was cited to have violated the Immigration and Nationality Act related to controlled substance trafficking. It is reported that at least 12 other Canadians who work in the marijuana industry were detained before their flight to this same conference as well. Stories like these demonstrate that even merely financial involvement in the cannabis industry can lead to serious immigration consequences. To learn more about the story, click here.
Both immigrants and non-immigrants alike, marijuana use, possession, or affiliation can have negative and often times dire consequences. For those who want to enter or remain in the United States, it is best to avoid marijuana and the marijuana industry until federal and immigration laws have changed.
Immigration law is a complex field of law, especially when combined with new developing laws regarding marijuana. Zhang & Associates, P.C. has a variety of skilled and knowledgeable attorneys that can guide you through this area of law. If you would like to contact us, please email us at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.
Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
He will use his experience and expertise to deliver the highest quality of service to our clients.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past twenty-two years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (email@example.com) for a free evaluation.
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