In a prior blog, we discussed drug offenses and immigration. This blog discusses marijuana specifically. In recent years, the legal landscape of marijuana has undergone a dramatic shift, with a growing number of states legalizing its use for medical or recreational purposes.
However, this evolving state-level legislation stands in stark contrast to the federal law, which still classifies marijuana as a controlled substance. This discrepancy has created a complex and often confusing situation for immigrants seeking to enter or remain in the United States.
Marijuana-Related Inadmissibility - INA 212(a)(2)(A)(i)(II)
Under federal immigration law, noncitizens who have been convicted of or admitted to using marijuana are inadmissible for entry into the United States. This means that they may be denied a visa or green card, or deported if they are already in the country. The severity of the consequences can vary depending on the nature of the offense and the applicant's immigration history.
Admitting to Marijuana Use
To be deemed inadmissible for a controlled substance violation, you must either have a conviction for such an offense OR admit to using marijuana. While it's not uncommon for people to disclose marijuana use during visa or USCIS interviews, this can lead to significant immigration consequences.
Admitting to marijuana use can have catastrophic effects on your immigration application and will result in you being barred from becoming a lawful resident of the United States. Therefore, you should not admit to marijuana use to any government officer without first discussing your case with an immigration attorney.
Many individuals mistakenly believe that marijuana offenses are less serious or that local legalization means they won't face immigration issues. However, admitting to marijuana use can have severe repercussions. If you have any arrests, convictions, or have used marijuana or any CBD cannabis product in the past, including gummies, edibles, tinctures, lotions or oils, it's crucial to consult with an immigration attorney to discuss your options and develop a strategic plan.
Marijuana Related Arrests or Convictions
A conviction of any drug offense, including marijuana, can derail your ability to become a permanent resident of the United States. Any drug related arrest should be discussed with your immigration attorney, even if you believe the arrest has been expunged or sealed.
Expungements are not Recognized
Immigration law does not recognize a conviction that has been expunged or dismissed through a deferred entry of judgment. Therefore, if you believe your drug related criminal offense was dismissed or expunged, it may still be recognized under immigration law. In these scenarios, it may be advisable to seek post-conviction relief to vacate the conviction entirely so that it does not exist for purposes of immigration. However, if the offense relates to only a single offense, you may be eligible for the 212(h) waiver discussed below.
Only One Waiver Exists, Possession of Marijuana Of 30 grams or less
If you are found inadmissible for a controlled substance offense, only one waiver exists and the waiver is extremely narrow and limited. A waiver under 212(h) only applies to a single offenses for possession of 30 grams or less of marijuana. If you have more than one offense, or if the quantity is more than 30 grams, no waiver is available. This means that any other drug offense for any other type of controlled substance outside of simple marijuana possession will make you permanently inadmissible.
Said more specifically, if you admit to regularly using marijuana, in the present or in the past, then you would not be eligible for the 212(h) marijuana waiver because it is more than a single offense, and because in the aggregate, it refers to more than 30 grams of marijuana.
Addiction or Abuse
Often, individuals do not have any criminal history associated with marijuana or drug use. However, at the panel physician (US civil surgeon), they may have admitted to using marijuana. This is separately problematic under INA 212(a)(1)(A)(iv), which causes inadmissibility for drug use or addiction.
Even without a conviction, admitting to addiction or abuse of any controlled substance, including marijuana, can make you inadmissible for immigration purposes. This applies if the condition is current, often considered as recent as within the past year. Additionally, addiction or abuse can be grounds for deportation if it occurred at any time after entering the U.S., although this is rarely used.
If you're applying for a visa through consular processing, be prepared to answer questions about drug use and potentially undergo a urine test. While a finding of inadmissibility for drug abuse can be overcome by abstaining for a year, it's preferable to avoid making formal admissions about marijuana possession. Such admissions can have permanent consequences unless a waiver is granted.
Employment in the Marijuana and Cannabis Industry
It is important to note that working in the marijuana industry may make you inadmissible as a “trafficker” of controlled substances. If you work in the marijuana industry, it is important to discuss your case with an immigration attorney before moving forward.
Marijuana Use and Naturalization
If you are already a permanent resident and seek to apply for naturalization, you should be aware that admitting to drug use will affect your naturalization application.
To become a naturalized U.S. citizen, you must demonstrate good moral character for a specific period. If you engaged in conduct listed under INA § 212(a)(2) during this period, you may be legally barred from establishing good moral character. Specifically, this includes violation of any law on controlled substances, except for simple possession of 30g or less of marijuana.
Therefore, admission to marijuana use during the statutory period will result in your naturalization application being denied. Worse, admitting to possession of marijuana could result in you being deportable and inadmissible.
Changes in Marijuana Law
As long as marijuana remains a controlled substance, whether as Scheduler I or Schedule III, an individual will face barriers seeking US immigration benefits. Therefore, it is unlikely that any change in law, other than complete legalization of marijuana, would change US immigration law.
The intersection of marijuana and immigration law is a complex and rapidly evolving area. It's essential for immigrants to be aware of the potential consequences of marijuana use and to seek legal guidance if they are facing related immigration issues. By understanding the complexities and exploring available options, individuals may be able to navigate these challenges and achieve their immigration goals.