The Feds Decree There Is No Legal Marijuana Use for Immigrants
Marijuana legalization across the United States is growing like a weed. Ten states have legalized recreational use of cannabis and 14 others have decriminalized it. Most of today’s presidential candidates, including President Trump, support allowing the states, not the federal government, to decide whether or not marijuana should be legalized.
The U.S. cannabis market is booming. According to the National Institute for Cannabis Investors, the cannabis industry is currently worth $10.8 billion with experts projecting it could grow to $100 billion in the next five years. Former Speaker of the U.S. House of Representatives John Boehner (R-OH), once a staunch opponent of legal marijuana, has evolved into a legalization advocate, joining the board of Acreage Holdings, a publicly traded cannabis company based in New York.
Yet, while the future may look bright for marijuana smokers and distributors, the present remains dangerously complicated. U.S. federal law still classifies marijuana as a Schedule I controlled substance. Possession, distribution or use are serious federal crimes, even in states where it is now legal. The conflict between federal and state marijuana laws has led to complications in the cannabis growing industry, especially for foreign nationals living in the United States -- green card holders and temporary workers alike.
Recently, U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security bureau that decides applications for citizenship, announced its intent to deny applications for U.S. citizenship on “moral character” grounds for green card holders who have legally used or distributed marijuana in states where its medicinal and recreational use have been legalized. The only exception is for immigrants whose interaction with marijuana was limited to a one time possession of 30 grams or less.
USCIS warned immigrants that even though “some states and the District of Columbia have enacted laws to decriminalize” medicinal and recreational marijuana, federal law still makes its manufacture, distribution and use a federal crime, resulting in dire “immigration consequences.” In other words, a green card holder who smokes marijuana in Colorado where it’s perfectly legal will be denied naturalization by USCIS because he or she lacks the necessary good moral character to become a U.S. citizen (no comment on the moral character of bureaucrats within the Department of Homeland Security who lock children in cages).
The immigration consequences of legal marijuana begin long before application for U.S. citizenship. A noncitizen who travels outside the U.S and upon return admits to U.S. immigration authorities that he or she has previously legally manufactured or distributed marijuana (that is to say, they were employed in the legal cannabis industry) or used state-legal marijuana can be denied admission and removed from this country.
For example, a lawful immigrant who travels abroad after using legal medicinal marijuana in Ohio under the care of a licensed physician treating her for chronic pain runs a high risk of being barred reentry to the United States when she tries to return home -- even though her use was legal under the laws of the state where she legally lives. If she admits to her medicinal marijuana use, U.S. Customs & Border Protection (CBP) will bar her reentry under a provision of the immigration law that prohibits the admission of any foreign national -- even a green card holder -- who “admits having committed” a violation of the Controlled Substances Act. CBP is brazenly violating the law in this scenario. The federal controlled substances statute clearly exempts marijuana use “pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice…”
Here’s where the immigration consequences of legal marijuana use get really weird. A foreign national who does not smoke or possess marijuana in the United States, but instead uses or distributes it in the Netherlands, Canada or any other foreign country where it’s legal, will have no problem getting back into the United States after foreign travel. That’s because the law barring admission of noncitizens who have used marijuana is limited to violations of state, federal or foreign law. If the noncitizen legally used or distributed marijuana in a foreign country, he or she is not barred from returning to the United States or qualifying for U.S. citizenship because he or she violated no federal law.
The state-federal marijuana conflict has real-life consequences. In November 2018, a Canadian investor in a Canadian cannabis company that has an operation in Nevada, was stopped by immigration officials at the airport in Las Vegas after CBP learned he was traveling for the purpose of attending a prominent cannabis conference. The Canadian investor was slapped with a lifetime ban from the United States based on controlled substance violations. Earlier in the year, another Canadian investor was stopped at the U.S. port of entry in northern Washington State and told that his investment in legal U.S. marijuana companies made him ineligible to enter the United States. He also received a lifetime ban.
So what does a foreign national do if, because of his or her lawful use of marijuana in the United States, he or she is denied reentry by CBP authorities? Foreign nationals who are temporarily working or visiting the United States may apply for a waiver of inadmissibility, which is essentially an application to the immigration authorities to admit the noncitizen into the United States even though his or her marijuana use has violated federal law. The U.S. immigration authorities have considerable discretion in determining whether to grant the waiver. The application can be made at a U.S. consulate abroad or, for Canadians, at a U.S. port of entry. However, the process for applying for such a waiver is cumbersome and can take up to a year. If granted, the waiver is valid for up to five years and can be renewed.
Strangely enough, green card holders may ultimately face a much more daunting hurdle to gain readmission into the United States. They will likely find themselves before an immigration judge who, if the green card holder qualifies, may cancel the removal or reissue the green card based upon the petition of a U.S. citizen or lawful resident spouse or child. However, these remedies are not available to all green card holders and do not take into account future legal use or manufacture of marijuana under state law. That means that even if a green card holder qualifies for a waiver, he or she may face immigration problems in the future after further use or distribution of cannabis products.
The takeaway is that, until the federal controlled substances statutes catch up with evolving state marijuana laws, foreign nationals who legally use marijuana or work in the cannabis industry in the United States run the risk of finding themselves at the wrong end of a citizenship denial or even a deportation order. Until marijuana use and distribution are no longer federal crimes, noncitizens are well advised to use extreme caution, or perhaps even forgo, the possession, use, or distribution of legal marijuana.