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March 18, 2014

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Immigration and the Legalization of Marijuana

by WSBA
marijuana law
Learn about the implications of marijuana use on immigration cases, and how it intersects with WA law.

marijuana lawImmigration and marijuana don’t mix well. U.S. immigration law is strict regarding narcotics, and there is a long history of federal cases related to marijuana use.

Probably the most famous case was in 1973, when John Lennon was ordered to be deported for a past marijuana conviction in England. He won that case, but only after a long court battle. The cause of the deportation order was supposedly a pretext for Lennon’s removal, as his activist efforts were unpopular in certain quarters. In 2006, the battle was memorialized in the movie The U.S. v. John Lennon.

Marijuana will soon be widely available in Washington state, as it already is in Colorado. However, marijuana continues to be a listed substance under the U.S. Controlled Substances Act, which therefore has continuing implications for persons seeking benefits under the U.S. Immigration and Nationality Act.

Narcotics use (not conviction) can be grounds for barring U.S. admission

Under current law, a person can be found inadmissible to the United States for 1) a conviction related to marijuana, 2) for simply admitting to committing the essential elements of any marijuana related offense; 3) for “reason to believe” that a person is a trafficker of controlled substances; 4) or for being a drug abuser. This is a non-exhaustive list, but I wish to highlight that an actual narcotics conviction isn’t required to bar admission to the U.S.

U.S. Customs doesn’t recognize Washington’s marijuana legalization

Further, initial indications from U.S. Customs and Border Protection are that the border and airport officers will continue to enforce the federal laws and pay no heed to Washington and Colorado’s experiments in legalization. The Department of State’s application form for visa applicants asks, “Have you ever violated, or engaged in a conspiracy to violate any law relating to controlled substances?” Naturalization and adjustment of status applications include similar questions. All of these forms are signed under oath.

If a person is found to have misrepresented themselves in pursuit of an immigration benefit, there are any number of things that can occur, none of which are good. For starters, they can be inadmissible for life.

Concerns for Canadian visitors

Legalized marijuana is a minefield for the noncitizen. What does the Canadian visitor say at the border? Officers have a great deal of discretion in the questions they may ask an applicant for admission, and have even occasionally denied entry to persons who having admitted to smoking marijuana in the past. They are much more likely to deny entry to a person who seeks admission for an illegal purpose, and so the person who says they intend to come down to have dinner and maybe smoke a bit of “your legal marijuana” might be in for a surprise.

Also, how does someone handle questions about narcotics on immigration benefits forms, and then during interviews with DHS? Or, further afield, do foreign investors risk the penalties of federal trafficking laws by being involved in a marijuana-related businesses? Is a person’s trusted traveler status at risk for marijuana use?

Hopefully, the federal agencies tasked with immigration oversight will adopt a transparent and uniform approach to Washington and Colorado’s new marijuana laws, as the current conflict of laws is bound to confuse both U.S. citizens and international visitors. The U.S. Attorney General has issued at least three different memorandums on marijuana legalization, and the Controlled Substance Act continues to be enforced, though with significant prosecutorial discretion.

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