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Noncitizens, State Marijuana Legalization, and Federal Immigration Consequences

February 19, 2020, Travis Helm, Esq., The Law Office of Travis Helm, LLC.

According to a recent Pew poll, 67% of Americans believe recreational marijuana should be legal, and 91% support making medical marijuana legal. In fact, accounting for state legalization, decriminalization, and medical allowances, marijuana is only fully illegal in 8 states. In Colorado, there are more marijuana dispensaries than Starbucks and McDonalds locations combined, and Nevada marijuana stores ran out of product just weeks after sales began. While it might appear to be high times for everyone, noncitizens who use marijuana, even in accordance with state laws, can have disastrous consequences to their present and future immigration status.

Noncitizens is a broad category of persons ranging from lawful permanent residents (having a “green card”) to nonimmigrants in the U.S. for a temporary stay, including tourists, students, and foreign national workers. Despite states taking actions to legalize and decriminalize marijuana, it is still a federal offense to possess, give away, sell, cultivate, import or export marijuana. Criminal convictions almost always carry immigration consequences, but in the case of controlled substances such as marijuana, so can even admitting that one has engaged in some prohibited conduct, and sometimes even evidence of the conduct without any admission.

A criminal conviction for an offense relating to a federally-defined controlled substance, including state legal marijuana, can make a noncitizen both deportable and inadmissible. An individual who has been convicted of a controlled substance violation is deportable pursuant to INA §237(a)(2)(B). The only exception is for a single offense involving possession for one’s own use of 30 grams or less of marijuana. And this exception can be strictly construed; in an unpublished decision, the Tenth Circuit (of which Wyoming in included) held that a conviction for one count of paraphernalia possession and one count of marijuana possession qualified as two convictions and therefor the individual did not have a “single offense” of simple possession of marijuana for one’s own use.

Unlike the deportation ground, the controlled substance inadmissibility ground in INA §212(a)(2)(A)(i)(II) is triggered by either a conviction or an admission of conduct, without a conviction. An individual who has been convicted of, or admits having committed the essential elements of, a crime relating to a controlled substance in inadmissible. This includes violations of state, federal, and foreign laws. This means an individual may be denied a visa, denied change of status from visa type to another, denied adjustment of status to lawful permanent resident, denied naturalization, or placed in removal proceedings and charged with inadmissibility if arriving at a port of entry. Legal admissions can occur in a number of circumstances: at the border, at a USCIS interview or written application, when questioned by ICE or law enforcement, at a consular or visa medical exam and in removal proceedings.

Noncitizens must be aware and warned that possession and use of marijuana is treated as a federal crime, even when the use or possession is considered legal under state or local law. Student visa holders may return to their home country for holiday and unwittingly admit to facts at border inspection which make them inadmissible and prevents them from returning to the United States to complete their studies. Naturalization (application for citizenship) requires the person establish they have had good moral character for a required period of time. USCIS has announced that “certain conduct involving marijuana… continues to constitute a conditional bar to [establishing good moral character] for naturalization eligibility, even where such activity is not a crime under state law.” Some USCIS officials have even charged that working in a state-licensed marijuana industry constitutes “drug trafficking,” whether or not the individual came in contact with any marijuana itself.

The message to noncitizens is clear: Immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.

The advice to noncitizens is:

• Stay away from marijuana until you are a U.S. citizen.

• If there is truly no medical alternative, consult an attorney.

• Do not carry marijuana, medical marijuana card, or marijuana related items or post marijuana related subjects on your social media.

• If you have ever used marijuana or worked in the industry, consult an attorney before leaving the United States, applying to change status, or applying for naturalization.

• Never discuss conduct involving marijuana with immigration or law enforcement authorities – unless your immigration attorney has advised that it is safe.

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