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Immigration Consequences of Marijuana Use for Green Card Holders and Nonimmigrants

22:31 04 January in News Updates
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Immigration Consequences of Marijuana Use for

Green Card Holders and Nonimmigrants

As has been well-publicized, January 1, 2018 marked the initiation of the lawful retail sale of marijuana for recreational use in California.  Business has been booming and is expected to continue: sales are projected to bring in $1 billion in tax revenue annually.

Twenty-nine states and the District of Columbia have now enacted laws which legalize marijuana for medicinal purposes.  Eight of those states, including California, Colorado, Washington, Oregon, Alaska, Massachusetts, Maine and Nevada, as well as the District of Columbia, have legalized marijuana for recreational use as well.

Despite legalization in individual states, is very important to note that the possession and/or use of marijuana, whether for medicinal or recreational purposes, and regardless of state laws,  remains illegal under federal law.  Immigration law is federal.  Therefore, foreign nationals, including U.S. Lawful Permanent Residents (green card holders), can still face very serious immigration consequences for the possession or use of marijuana, or admission of the same, even if it was lawful in the state in which the act occurred.  

Federal Law

The federal Controlled Substances Act prohibits the manufacture, importation, possession, use and distribution of marijuana and certain narcotics, stimulants, depressants, hallucinogens, anabolic steriods and other chemicals.   Because U.S. immigration law is federal, the state laws which permit the use and possession of marijuana do not protect non-immigrants (those in the U.S. in a nonimmigrant visa status, such as tourists, sutdents, H-1B workers, etc.) or U.S. Lawful Permanent Residents (green card holders) from negative immigration consequences.

Federal policy change effective January 4, 2018

Today the Associated Press reported that Attorney General Jeff Sessions has rescinded the 2013 Obama-era policy whereby the federal government would not stand in the way of states that legalize marijuana, as long as officials acted to keep it from migrating to states where it remained illegal, and out out of the hands of children and criminal gangs.   In the new memo, Sessions rescinds this policy, stating he will instead let federal prosecutors in states where marijuana has been legalized decide how aggressively to enforce federal law.

Marijuana and U.S. Immigration Law

U.S. immigration law states that any foreign national whom a consular or immigration officer knows or has reason to believe was “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a consipiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), is inadmissible.”  INA §212(a)(2)(A)(i)(I and II).

In other words, a foreign national can be denied a visa to the U.S. at the consulate, and/or denied admission to the U.S. at a port of entry, and/or denied a green card at an adjustment of status interview, for simply admitting to past marijuana use, even it if was legal in the state in which the use occurred.   A conviction of a marijuana-related offense is not required to be rendered inadmissible to the U.S.

Limited waivers of inadmissibility are available for simple possession of 30 grams or less of marijuana, if denial of the waiver would cause extreme hardship to a qualifying relative.  However, the waiver process is not fast, simple, and the grant of a waiver is certainly not guaranteed.

Travel Advisory

Travelers should be aware that U.S. Customs and Border Protection may ask about marijuana possession and use, past or present, especially at ports of entry to states (such as California and Washington) where marijuana has been legalized.   As noted above, even admission of past use may result in denial of admission to the U.S.   Also, note that failure to be truthful can result in a charge of fraud or misrepresentation of a material fact in order to gain an immigration benefit, which results in a lifetime bar to admission to the U.S., unless a waiver is obtained.   

 Further, CBP takes the position that it has the right to search electronic devices at a port of entry.  If they locate information concerning past or present marijuana use on Facebook feeds, this is enough to deny admission to the United States.  This is another area where youthful indiscretions posted on Facebook, Instagram, SnapChat, etc. can have serious long-term consequences.  Talk to your kids.

Once in the U.S.

Even after admission to the U.S., a conviction of any law or regulation, in the U.S. or any foreign country, for any controlled substance violation other than than simple possession of 30 grams or less of marijuana is a deportable offense.  This means that a person who has held a U.S. green card for many years may still be deported for a marijuana-related conviction.

Summary

Despite State laws legalizing the medicinal and/or recreational use of marijuana in some jurisdictions, such use remains unlawful at the federal level.  It is important that any non-U.S. citizen is aware that violation of federal law relating to controlled substances, including marijuana, may carry very serious and potentially lifelong immigration consequences.

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