Marijuana legalization and immigration: facts for foreign nationals

12 Dec 17

UNITED STATES

Marijuana may be gaining recognition as a less dangerous drug—but in the immigration context, it’s still toxic.

A majority of states have now decriminalized the drug, making it legal to use small amounts for medical or recreational purposes. California, Maine, Massachusetts and Nevada voted in 2016 to legalize recreational marijuana use, joining Alaska, Colorado, Oregon, Washington state and Washington, D.C. In addition, Arkansas, Florida, Montana and North Dakota enacted medical marijuana laws in 2016, joining more than a dozen states that have decriminalized the use of marijuana to treat certain medical conditions.

While these state legalization laws may give foreign nationals a sense that drug activity in those states is also noncriminal for immigration purposes, the reality is that under federal law, marijuana remains an illegal substance that is subject to criminal prosecution and penalties. The conflict between state and federal laws can pose special risks and serious repercussions for foreign nationals applying for visas, permanent residency or other immigration benefits.

Foreign nationals should be aware of the consequences of admitting to drug activity and be prepared if border or immigration officers—including USCIS officers at now-mandatory green card interviews—ask questions about past or current drug use or activity.

How does immigration law treat marijuana?
The federal Controlled Substances Act classifies marijuana as a Schedule I drug with high potential for abuse and no accepted medical use. Under immigration law, a violation of a controlled substance law (domestic or foreign) may result in a finding of inadmissibility which would impact foreign nationals’ ability to obtain a visa, apply for a green card, convert from one immigration status to another, and subject them to deportation. In the worst-case scenario, someone who has been convicted of a drug offense, or who admits to a violation of a drug law, may be deemed permanently inadmissible.

There is an exception for violations involving 30 grams or less of marijuana. There are also limited exceptions for individuals entering on nonimmigrant visas for drug violations that involve other types of drugs and quantities. A waiver, however, is not available if an individual is found to be a drug abuser or addict.

If I haven’t been convicted of a drug crime, can I still be found inadmissible?
While a conviction will almost certainly trigger inadmissibility concerns, foreign nationals should be aware that a conviction is not required for a finding of ineligibility under immigration law. Anyone who admits to having violated a drug law, or admits to the essential elements of a crime, may be found inadmissible even if there have been no charges or convictions.

Is the Trump administration increasing scrutiny of drug crimes?
Attorney General Jeff Sessions recently reiterated his opposition to marijuana legalization, claiming that it has contributed to the opioid crisis that President Trump declared to be a national public health emergency in November.

A recent change to the green card application process in June 2017 broadened questions about controlled substances to include whether the applicant has “ever violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country.” Responses to the revised questions allow USCIS officers to gather more information on applicants and potentially follow up on them during green card interviews. The reference to a state, the U.S., or a foreign country suggests that USCIS may start asking more questions that could lead to an admission by individuals using marijuana legally under state law.

Federal law also authorizes immigration officers to bar individuals whom they have “reason to believe” have engaged in trafficking-related activity. This includes possession of certain amounts of a controlled substance or involvement with a state-approved cannabis business or dispensary, under certain circumstances.

I have a DUI citation—will this impact my application?
Individuals who have a DUI citation on their records should be prepared for questions related to whether drugs other than alcohol were involved. State-issued medical marijuana card are also likely to trigger questions about drug use that could lead to a finding of inadmissibility and potential entry bans.

BAL Analysis: A finding of drug-related activity—even without a conviction or when conduct is legal under state law—can carry significant risks for those applying for immigration benefits, and the patchwork of laws can be confusing. Applicants should seek qualified legal counsel for further information and advice on the potential immigration consequences of marijuana use.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.