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The Collision Between Federal Immigration Law and State Marijuana Reforms

Posted by on Monday, April 22, 2019 in News, Updates.

In mid-April, U.S. Citizenship and Immigration Services (USCIS) issued new guidance clarifying the immigration consequences of state marijuana reforms. The USCIS guidance can be found in Chapter 5 of the USCIS Policy Manual.

The guidance was prompted by recent cases in which USCIS has denied the citizenship applications of immigrants, solely because those immigrants acknowledged working in the state-licensed marijuana industry. A Los Angeles NPR affiliate (KCRW) recently broadcast a story about two such immigrants; you can listen to that broadcast, which includes an interview with me, here. Marijuana Moment has also covered the immigration issues spawned by state reforms here.

I have copied the relevant text of the Manual below, but first let me provide some necessary background on immigration law. Federal immigration law imposes a number of requirements on individuals seeking to become citizens. One of those requirements is demonstrating “good moral character.” Federal immigration law further defines good moral character, largely by referencing actions that are inconsistent with good moral character – like committing adultery or committing certain criminal offenses, including drug trafficking offenses.

Here is the relevant language from Chapter 5 of the USCIS Manual, which describes the law:

“C. Controlled Substance Violation

1. Controlled Substance Violations
An applicant cannot establish good moral character (GMC) if he or she has violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. . . .
This conditional bar to establishing GMC applies to a conviction for such an offense or an admission to such an offense, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law. . . .

2. Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana
A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” or “recreational” use of marijuana. Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. Schedule I substances have no accepted medical use pursuant to the CSA. Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law.
Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.

3. Exception for Single Offense of Simple Possession
The conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana. This exception is also applicable to paraphernalia offenses involving controlled substances as long as the paraphernalia offense is “related to” simple possession of 30 grams or less of marijuana.”

Let me share a few thoughts.

First, although lots of commentators have criticized USCIS for the harsh outcomes in these cases (see, e.g., the Marijuana Moment coverage linked above), I think the agency is not to blame. Indeed, I think it has no choice but to deny citizenship to immigrants who are working in the marijuana industry. The agency did not invent the good moral character requirement. Congress itself imposed that requirement by statute, and Congress also specified that drug trafficking was necessarily inconsistent with good moral character. You might disagree with those choices, but they are for Congress to revisit.

Here is the relevant statutory language passed by Congress:

“(f) No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was- . . .

(3) a member of one or more of the classes of persons, whether inadmissible or not, described in . . . subparagraphs (A) and (B) of [8 U.S.C.] section 1182(a)(2) . . . and subparagraph (C) thereof . . . (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period [of 5 years] . . .”

8 USC § 1101.

Section 1101(f) incorporates by reference the criteria for admissibility into the country. Among other things, those criteria provide that:

“Any alien who the consular officer or the Attorney General knows or has reason to believe—
(i) 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 endeavored to do so . . .
is inadmissible.”

8 U.S.C. § 1182(a)(2)(C).

Thus, under immigration statutes passed by Congress, if an immigrant manufactures or distributes an illegal drug, they necessarily do not possess the good moral character required for citizenship.

Importantly, as the statute makes clear (and as the Manual restates), an immigrant need not have been convicted of a drug trafficking offense to lack good moral character. The bar is triggered if the immigrant simply admits that she engaged in such an offense (or admits to facts that would constitute such an offense). In the cases discussed in that KCRW story, for example, it appears the immigrants acknowledged working in state-licensed marijuana shops on their citizenship applications (which ask about employment history, among other things). One of the immigrants even acknowledged cultivating marijuana, though for reasons I discuss in Chapter 7 of the book (which explores the broad definition of drug trafficking under state and federal law), I think it likely that anyone who works in a marijuana business has committed at least one serious federal drug trafficking crime. The only drug crime Congress excluded from the good moral character requirement is the simple possession of about 1 ounce or less of marijuana.

Furthermore, it is of no consquence whether the immigrant’s actions were authorized by state law. The statute and the Manual make it clear that committing a federal drug crime is disqualifying. And even if the DOJ is no longer prosecuting state-authorized marijuana activities, those activities nonetheless remain federal crimes.

In sum, I suspect the USCIS lacks discretion to waive or redefine the good moral character requirement for purposes of federal immigration law.

Second, what can immigrants do to maintain their eligibility for U.S. citizenship? The only sure-fire way is to avoid working in the marijuana industry. If an immigrant is already working in the industry, the only option right now is to quit and then wait five years before (re)applying for citizenship. Federal immigration law is somewhat forgiving — the good moral character bar for certain crimes, like drug offenses, only lasts 5 years. That’s why the UCCIS Manual quoted above refers to it as a “conditional bar”, as opposed to a permanent bar.

The only other possibility is to convince Congress to change federal law, either by redefining good moral character or by legalizing marijuana under federal law. If Congress chose the latter option, however, immigrants who have already violated federal law might still need to wait 5 years before applying for citizenship.

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