Marijuana Remains Problematic for Immigrants

Blog Post by Alex Sheppard, Summer 2015 Intern

On August 29, 2013, the Obama administration released a memo saying that despite marijuana remaining an illegal drug under federal law, the U.S. Department of Justice would not challenge state laws legalizing marijuana in Washington and Colorado. The memo also stated that the Department would turn its prosecutorial efforts away from the recreational use of marijuana in these states, so long as the states maintained their own strict regulations regarding use of the drug. This is good news for U.S. citizens who wish to participate in regulated marijuana use without concerns about criminal consequences. However, marijuana remains illegal federally, and federal law reigns supreme over immigration matters.

There has been no such memo or guidance from the Obama administration regarding marijuana use by noncitizens, and there is good reason to believe that marijuana use will continue to cause issues for non-citizens in the immigration process. Marijuana is listed as a Schedule I illicit substance under the federal Controlled Substances Act. Accordingly, its use, or even the intention to use, can lead to significant immigration consequences, including inadmissibility, deportation (removal), and a bar to citizenship. Until there is guidance regarding the use of state-legalized marijuana by immigrants, its use should be avoided.

The following lists ways in which marijuana use can affect immigration status, including in states that have legalized recreational use.

Inadmissibility – Applicants for admission into the U.S. can be denied admission for simply admitting to marijuana use or future plans to use marijuana, regardless of any criminal charge. An applicant can be denied admission into the U.S. if it is determined that:

1. The applicant is a drug abuser or addict;
2. If the applicant’s drug use constitutes a crime of moral turpitude;
3. If the applicant admits to a violation or a plan to violate state, federal, or foreign drug laws (marijuana remains illegal federally and in foreign countries);
4. If there is reason to believe the applicant is a drug trafficker (the immediate family becomes inadmissible as well); or
5. If the applicant is believed to be entering in the U.S. with plans to consume marijuana or other drugs, or to participate in the drug market

Deportation – Convictions for drug crimes can result in deportation, regardless of status. Additionally, simply admitting to drug use can result in deportation if DHS determines that the noncitizen is a drug abuser or addict. The following drug convictions can result in deportation:

1. Conviction for a controlled substance violation (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana);
2. Multiple convictions for illegal drug use;
3. Conviction for an aggravated felony (including drug trafficking); or
4. Conviction for criminal activity which endangers public safety or national security (including serious drug crimes)

Citizenship – Lawful permanent residents applying for citizenship must satisfy a “good moral character” requirement. Applicants can fail this requirement for drug use, including marijuana consumption in Colorado. An applicant will fail the “good moral character” requirement for:

1. Violation of any federal, state, or foreign law relating to a controlled substance (other than a single offense involving 30 grams or less of marijuana for personal use); or
2. Admitting to a drug crime that constitutes a crime of moral turpitude