December 2nd, 2019
Medical and Recreational Legalized Marijuana is Not the Same for Non-Citizens
Any foreign national who has not obtained U.S. citizenship should be aware of participating in “legal” marijuana while in the U.S. While the majority of states have legalized the use of marijuana for recreational or medicinal use, the use and possession of marijuana remains illegal under the federal law. The Controlled Substances Act (CSA) of 1970 categorizes marijuana as a schedule I drug, and the use and possession of the drug remains illegal for any purpose, including medicinal use. The U.S. Department of Justice (“DOJ”) has reaffirmed its position to enforce the CSA, despite enactment of these state marijuana laws.
The conflict of laws can understandably create confusion, especially in relation to U.S. immigration status. However, foreign nationals who do not have U.S. citizenship should be especially aware of the potential consequences that participating in the state marijuana industry can have on immigration statuses. Because immigration is part of federal law, marijuana is not considered legal for immigration purposes.
Many individuals are not aware that some immigration laws are written to bar admission to the United States even without a conviction for a controlled substance offense. A non-citizen can face immigration consequences simply by admitting to an immigration official that he or she has ever possessed marijuana. This includes non-immigrants – persons with a permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis (for example, for tourism, medical treatment, business, temporary work, or study). Non-immigrants attempting to enter the U.S. may be found inadmissible for past marijuana use if the CBP officer finds that the individual has been involved with marijuana.
CBP has the right to search all persons, baggage and merchandise arriving in the United States from abroad. CBP officers may also examine computers, hard drives, and other electronic or digital storage devices, like cellphones, to obtain information concerning past marijuana use.
Involvement with marijuana can also bring consequences for individuals seeking to become U.S. citizens. USCIS has issued Policy Guidance to clarify that individuals involved with marijuana can face serious consequences when applying for U.S. Citizenship, such as being barred from citizenship for failure to meet good moral character requirement.
In sum, the best practice is to not work in the marijuana industry or use marijuana until after obtaining U.S. citizenship. A non-citizen should not leave the house with marijuana, a medical marijuana card, paraphernalia, or accessories like marijuana t shirts or stickers, and should not have anything on his or her cellphone or Facebook relating to marijuana.
Because of the complex relationship between federal immigration and drug laws in relation to state marijuana and criminal laws, we strongly advise clients who are concerned about U.S. immigration consequences for marijuana-related grounds to schedule an appointment to speak with an experienced immigration attorney.