Immigration Consequences of Marijuana Use for Green Card Holders and Non-Immigrants: Don’t Let Your Dreams and Hard Work Go Up in Smoke/Vapor

Oct 22, 2020 | Investor Visas

Twenty-four states, including California, and the District of Columbia have enacted laws which legalize or decriminalize the use and possession of marijuana in some form for medicinal purposes.  Four of these states (Colorado, Washington, Oregon, and Alaska) and the District of Columbia have even legalized marijuana for recreational use.  Yet, the U.S. federal government regulates marijuana under the Controlled Substances Act (“CSA”), Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.  The CSA prohibits the manufacture, importation, possession, use, and distribution of marijuana and certain narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and other chemicals.  The U.S. Department of Justice (“DOJ”) has reaffirmed its position of enforcing the CSA, despite enactment of these state marijuana laws.  It is thus important to understand that state laws authorizing the use or possession of marijuana, even if used for medicinal purposes, do not change the fact that using marijuana continues to be an offense under federal law.

The confusion caused by this conflict of laws is substantial, especially as it relates to U.S. immigration status.  Here are ten things lawful permanent residents (green card holders) and non-immigrants should know before smoking and/or ingesting marijuana.

  1. The Immigration and Nationality Act of 1990, as amended (“INA”), states that any alien who a consular office knows or has reason to believe is or has been an illicit trafficker in any “controlled substance,” or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so is inadmissible. This includes offenses beyond simple possession of marijuana and also include all parts of a marijuana plant, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant.
  2. The INA is written in a way such that an actual conviction of a marijuana-related offense is not required to bar admission to the U.S. An alien can be found inadmissible to the U.S. for simply admitting to committing the essential elements of any marijuana-related offense under current U.S. immigration law.
  3. Even a non-immigrant – a person with a permanent residence outside the U.S. but who wishes to be in the U.S. on a temporary basis (for example, for tourism, medical treatment, business, temporary work, or study) – attempting to enter the U.S. may be found inadmissible for past marijuana use.
  4. However, a limited waiver of inadmissibility is available if the applicant can prove that the offense involved “a single offense of simple possession of thirty grams or less of marijuana,” and, unless the offense occurred fifteen years before the application for admission, that a denial of the waiver would cause extreme hardship to a “qualifying relative” – a U.S. citizen or lawful permanent resident spouse, parent, son, daughter, or fiancé.
  5. The INA further states that any alien who, at any time after admission, has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. The INA also states that any alien who, at any time after admission, has been a drug abuser or addict is also deportable.
  6. Accordingly, even if you have been a U.S. permanent resident for over 25 years, you may still be deported for marijuana convictions.
  7. A marijuana conviction can also adversely affect U.S. permanent residents and non-immigrants by closing off eligibility for certain types of relief from removal or adjustment of status. Thus, for U.S. permanent residents and non-immigrants, there are serious and possibly lifelong consequences under U.S. immigration law for using or committing an offense related to marijuana.  Obtaining U.S. citizenship is the only way to prevent the possibility of deportation due to a marijuana conviction.
  8. It is not uncommon for Customs and Border Protection (“CBP”) officers to ask those wishing to enter the U.S. to admit to using marijuana, especially if the port of entry is located within a state with laws related to marijuana use or possession for medicinal and/or recreational purposes. It is also possible that a CBP officer denies admission to those who indicate they plan to visit marijuana dispensaries within the U.S.
  9. Further, 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.
  10. Finally, the INA states that any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the U.S. Accordingly, Wolfsdorf Rosenthal LLP advises clients to always answer questions from a CBP officer, or any officer or employee of the U.S., honestly, even for questions related to past marijuana use.

Because of the complex relationship between federal immigration law and drug laws, on one hand, and state marijuana and criminal laws, on the other hand, Wolfsdorf Rosenthal strongly advises clients that potentially face adverse U.S. immigration consequences for marijuana-related grounds to speak with an experienced immigration attorney. 

If you have any questions or would like assistance involving marijuana-related matters, including any waivers, please contact our immigration attorneys to set up a consultation for us to learn the details of your case.

This post is designed to provide practical and useful information on the subject matter covered.  However, it is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided.  If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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