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TO: Interested parties

FR: Katherine Brady, Senior Staff Attorney, ILRC


kbrady@ilrc.org
RE: Immigration Effect of Proposed Federal Marijuana Legislation
DA: May 13, 2019

The Immigrant Legal Resource Center (ILRC) is a national nonprofit resource center
that, among other things, assists policy-makers, legal advocates, and community
members to understand how proposed legislation and policies will affect
immigrants.

We write to provide information about how various proposals for federal legislation
on legalizing marijuana will affect noncitizens. One can divide the current proposed
bills into two categories: those that remove marijuana from the federal drug
schedules, which resolves the immigration issues going forward, and at least one
bill, the STATES Act, that does not remove marijuana from the federal schedules
and does not resolve some key issues. This memorandum will review marijuana
penalties and discuss the two types of bills.

This is of urgent concern, because USCIS recently emphasized that it will impose
severe immigration penalties even on conduct that is legal under state law, such as
employment in the legitimate marijuana industry, or permitted use of medical or
recreational marijuana.i
Conclusions
The STATES Act will not protect immigrants who work in the legitimate marijuana
industry from the current severe immigration penalties. These penalties also will
apply to their spouses and minor children.
The STATES Act will protect against severe immigration penalties based on most
other conduct permitted under applicable state or tribal law, such as medical or
recreational use of marijuana. It is not clear that it will prevent immigration
consequences of admitting past lawful conduct.
The STATES Act will not protect against severe immigration penalties based on
admitting, or being convicted of, any conduct relating to marijuana in violation of a
state law, including offenses such possessing a marijuana pipe or a small amount for
personal use.
Bills that remove marijuana from Schedule I: In contrast, bills that remove
marijuana as a Schedule I controlled substance will protect against all the above
consequences. They will remove severe immigration penalties from employees of
www.ilrc.org Immigration Effect of Marijuana Bills

the legitimate marijuana industry and their families. They will remove those penalties from
people who use marijuana in accord with, or in violation of, state law. They may or may not
protect past conduct or employment.

Past Events: To protect against immigration penalties for employment, conduct, or convictions
from before the effective date of any new law, it will be most effective to include a specific
provision precluding those penalties. See endnote for sample language.ii

I. Marijuana Penalties under Immigration Law

Marijuana is a federally-defined, Schedule I controlled substance. See 21 USC 802 et seq.


Immigration law penalizes non-citizens in multiple ways for conduct involving a federally-
defined controlled substance. iii

First, a noncitizen is “inadmissible” (cannot be admitted at the border, get a green card, or
qualify for some other benefits), and cannot establish the “good moral character” required for
naturalization, if:

• They assisted in “trafficking” in a federally-defined controlled substance.iv


Lawful employment in legitimate marijuana industry. This employment is held to make the
person inadmissible as a drug “trafficker.” USCIS can deny naturalization to U.S. citizenship,
admission at the border, and eligibility for a green card or other lawful status, based on the
employment.
For example, in a recent case, permanent residents from Denver were denied
naturalization solely because they worked legally in the Colorado cannabis industry.
USCIS can impose the same penalties on the employee’s spouse and minor children, if they
are found to have “benefitted” from the employee’s work, e.g., if parents use their wages
from this employment to support their children.

• They admit to DHS that they have possessed a federally-defined controlled substance.v
Admitting to lawful medical or recreational use of marijuana. USCIS holds that a person is
inadmissible who admits to any use of marijuana, for medical or recreational purposes,
even in accordance with state law, anywhere in the United States. They face the above-
described bars to naturalization, admission, and lawful status.
For example, an immigrant from Washington D.C. applied for a green card through his
U.S. citizen wife, with whom he has an infant child. He was denied the green card solely
because he admitted in response to a USCIS officer’s question that he had tried
marijuana twice at parties, after it became legal in D.C.
An lawful permanent resident from Michigan has been recovering from a car accident
that left her with severe chronic pain. Because she could not tolerate opioids, her doctor
advised her to use medical marijuana, in accordance with Michigan law. This helped her

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tremendously, so that she was able to begin to resume regular life. USCIS denied her
application for naturalization solely due to the medical marijuana use.

• A lawful permanent resident who comes within these categories and then travels outside
the United States is deportable (removable).
Travel outside the United States. A lawful permanent resident in the above categories
cannot be deported (expelled from the U.S., lose their green card), unless they take a trip of
even a few days outside the United States. Then they can be stopped at the border upon
their return, put in removal proceedings, and permanently excluded (lose their green card
and be barred from returning to the United States).vi

Second, a noncitizen is inadmissible, barred from establishing good moral character, and
“deportable”vii (can lose their green card and be deported), if they are convicted of a marijuana
offense. There is an exception for a permanent resident who had just one conviction in their
lifetime that involved possessing a small amount of marijuana for personal use. But a second
conviction, or conviction of possession more than 30 grams, triggers deportability.
In many high-immigrant states, such as Texas and California, this includes conviction of a
low-level “infraction” or a “ticket” offense, where there are fewer constitutional
protections – for example, no right to a public defender -- in the proceeding.

Third, a noncitizen can be found inadmissible or deportable if they abuse or are addicted to a
federally-defined controlled substance.viii In practice, “abuse” is often defined as multiple uses
within the past year.

Fourth, being inadmissible or deportable based on marijuana subjects a noncitizen to


mandatory, indefinite detention by ICE, with no possibility of even a bond hearing.ix

II. Bills That Remove Marijuana as a Federal Controlled Substance

Some bills introduced in the House and Senate will remove marijuana as a Schedule I, federally-
defined controlled substance. Marijuana will not be criminalized federally, but each state will
be free to decide whether to criminalize it under state law.

Simply removing marijuana from federal drug schedules will protect immigrants going forward,
without the need to amend the Immigration and Nationality Act. This is because marijuana will
no longer meet the federal definition of a controlled substance, so it will not make the person
inadmissible or deportable under any of the controlled substance grounds.x
Example: Lawful employment in the industry. Currently USCIS asserts that employment in a
state-licensed marijuana industry makes a noncitizen ineligible for naturalization and
inadmissible, because they are assisting in “trafficking” a federally-defined controlled
substance. This also applies to their spouse and minor children. If marijuana is removed from

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the federal list, employees are not trafficking in a federal substance, and they and their families
are not inadmissible or ineligible for naturalization.
Example: Admitting lawful use. Currently USCIS asserts that admitting medical or recreational
use in accord with state law makes a makes a noncitizen ineligible for naturalization and
inadmissible, because they are admitting a federal crime. If marijuana is removed from the
federal list, they will not be admitting a federal crime.
Example: Conviction under state law. Say that State A criminalizes marijuana possession. If a
noncitizen is convicted in State A, they face the state’s criminal punishment. However, if
marijuana is removed from the federal list, they will not also face severe immigration penalties
based on a federally-defined controlled substance offense.xi
What about immigration penalties based on past employment in the marijuana industry,
admission of past use, or a past criminal conviction relating to marijuana? Depending on how
the bill is drafted, it may or may not protect immigrants in this situation. The best option is to
explicitly write this into the bill; see sample language at endnote 1.

III. The STATES Act, Which Does Not Remove Marijuana from Schedule I
The STATES Act leaves marijuana as a federal Schedule I controlled substance, but it provides
that the federal criminal provisions will not apply to “any person acting in compliance with
State law relating to the manufacture, production, possession, distribution, dispensation,
administration, or delivery of marihuana.” Sec. 701(a) and (b). It sets out a few types of conduct
that will not receive this protection, e.g., selling marijuana at a truck stop. xii

In sum, the STATES Act would be a federal law that provides that if certain conduct with
marijuana is lawful under the state or tribal jurisdiction, it will not be considered a federal
crime. If it is not lawful under those jurisdictions, it remains a federal crime.

The STATES Act appears to remove the immigration penalties for admitting conduct that is
permitted under state law, although it is not clear that this has retroactive effect. It does not
appear to remove immigration penalties for being employed in the marijuana industry or for
violating a state law relating to marijuana.

STATES Act solution: Admitting lawful conduct. The STATES Act provides that (most) conduct
that is lawful under state marijuana laws is not a federal crime. Therefore, it appears that a
noncitizen who admits to engaging in that conduct will not be face immigration consequences
for admitting the elements of a federal crime. (We say “appears” because the government is
very litigious in this area and there may be challenges.xiii)
Example: State A permits medical use of marijuana as ordered by a doctor. Currently,
that use is a federal crime. Under the STATES Act, a noncitizen who engages in that use
does not commit a federal crime, because it is permitted under state law. The person
will not be inadmissible and barred from naturalization for admitting to a federal crime.

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STATES Act problem: Employment in the legitimate industry. The STATES Act does not protect
people who are legally employed in the marijuana industry, or their spouse and minor children.
They remain inadmissible and barred from naturalizing, based on their aiding or participating in
the trafficking of a federally-defined controlled substance.
This is because the trafficking penalty is not based on the conduct being a “crime” under
federal law, which is what the STATES Act can help with. It is based on the person engaging in
certain conduct: participating or assisting in any way in the sale (trafficking) of a substance on
the federal schedules. As long as marijuana is on the federal schedules, people working in the
industry and their families will be inadmissible and barred from establishing good moral
character.
• Example: State A has a marijuana industry that is permitted under state law, and
therefore does not operate in violation of federal law under the STATES Act.
An administrative assistant there is a lawful permanent resident, as is her husband.
Because her work is in furtherance of sale of a federally-listed controlled substance, she
comes within the drug “trafficking” ground. She and her spouse cannot naturalize. If
they leave the U.S. on a trip, upon their return they can be stopped at the border, put in
removal proceedings, and lose their green cards. If her minor children are not U.S.
citizens, the same can happen to them.

One effect of this may be to limit the labor pool for the growing cannabis industry. In particular
there are several agricultural jobs that will be difficult to fill without immigrant labor.

STATES Act problem: Violation of state marijuana laws; past convictions and admissions.
Under the STATES Act, a conviction, or just an admission, of any conduct in violation of a state
marijuana law will continue to have severe immigration consequences.
The STATES Act would benefit immigrants by removing consequences of marijuana use in some
states. A downside, however, is that in other states it may create even more confusion about
the law, and will leave in place severe immigration consequences, including indefinite
detention, permanent deportation, and destruction of families, based on conduct that
increasingly carries very minor criminal consequences. The problem is amplified by the fact that
the majority of noncitizens in the U.S. are working people who do not have access to counsel.
Rumor and misinformation are a constant.
The STATES Act would create a patchwork of states in which marijuana use either has no
immigration consequences at all, or devastating immigration consequences. In many instances,
immigrants would not have notice of these consequences. Many states or municipalities that
have not legalized marijuana, still have downgraded the use of marijuana to be a very minor
offense, including an “infraction” or a “ticket” offense that is resolved by paying a fine.
Generally the person charged with this kind of low-level offense is not advised by a public
defender and lacks other procedural protections. Despite this, immigration authorities often
hold that the municipal offense, infraction, or ticket is a damaging “drug conviction” for
immigration purposes.xiv The people charged often have no understanding that the actual

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penalty for paying the fine or otherwise admitting guilt may be detention, deportation, and
permanent separation from their families in the United States.
Some states and municipalities are permitting and encouraging residents to “expunge” past
minor marijuana convictions. While expungements can provide a benefit in terms of clearing
one’s record for employment and other purposes, generally they do not eliminate the
conviction for immigration purposes. xv Although the state may assure them that they have no
criminal record, the noncitizens will unknowingly remain deportable, inadmissible, and barred
from naturalizing.
Because the trend among states is either to legalize, or to significantly downgrade the offense
level, of conduct involving marijuana, and because the country is quickly growing a multi-billion
dollar marijuana industry with ubiquitous advertising, arguably the best solution is a nationwide
rule providing that the conduct does not have catastrophic immigration consequences.

i See USCIS announcement amending its Policy Manual (Vol. 12, Chapter 5, Part C) as of April 19, 2019 to provide
that employment in the legitimate marijuana industry and other conduct relating to marijuana that is permitted
under state law can be a basis to deny U.S. citizenship based on lack of “good moral character,” at
https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf .
Employment or admission of lawful conduct is a bar to good moral character because it is a controlled substance
inadmissibility ground. See, e.g., INA 101(f)(3), 8 USC 1101(f)(3), and further discussion below.
ii This could include language such as, “No admission, conduct, finding, or conviction relating to cannabis,

regardless of date, shall be a basis for an adverse finding pursuant to Title 8 of the United States Code.”
iii Each of the below removal grounds and penalties refers to a controlled substance as defined at 21 USC 802.
iv See INA 212(a)(2)(C), 8 USC 1182(a)(2)(C).
v See INA 212(a)(2)(A)(i)(II), 8 USC 1182(a)(2)(A)(i)(II).
vi See INA 101(a)(13)(C), 8 USC 1101(a)(13)(C), providing that a returning lawful permanent resident who is

inadmissible under the crimes grounds can be excluded at the border.


vii See INA 237(a)(2)(B)(i), 8 USC 1227(a)(2)(B)(i).
viiiSee INA 212(a)(1), 237(a)(2)(B)(ii); 8 USC 1182(a)(1), 1227(a)(2)(B)(ii).
ix See INA 236(c), 8 USC 1226(c), and discussion in, e.g., Nielsen v. Preap, 139 S. Ct. 954 (2019).
x Each of the controlled substance removal grounds defines a controlled substance by 21 USC 802.
xi See, e.g., Mellouli v. Lynch, 135 S. Ct. 1980 (2015).
xii The exceptions appear to include any conduct with marijuana that is not permitted under state law, and some

other specific conduct such as distribution at a struck stop. Sec. 701(c), (d). The bill treats Tribal law similarly.
xiii For example, immigration authorities have litigated up to the Supreme Court their assertion that the smallest

drug offenses are drug trafficking “aggravated felonies.” See Lopez v. Gonzales, 549 U.S. 47 (2006) (Court rejected
argument that simple possession of cocaine is a drug trafficking aggravated felony); Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010) (Court rejected argument that possession of a small amount of marijuana, plus possession of
one Xanax tablet, is a drug trafficking aggravated felony); Moncrieffe v. Holder, 133 S.Ct. 1678, 1693 (2013) (Court
rejected argument that sharing a marijuana cigarette is a drug trafficking aggravated felony).
xiv This is a state-by-state determination made under unclear guidelines supplied by the Board of Immigration

Appeals. See, e.g., Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012) (a Kansas municipal code “offense” prohibiting
possession of marijuana is a deportable conviction) and see n. 3 (each statute must be analyzed individually to
determine whether it is a conviction).
xv See, e.g., Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).