California, Legalization, and Immigration

On January 1st, California will join Washington State, Colorado, and others in legalizing the recreational use of marijuana. Proposition 64 was passed by the voters of California in November, legalizing possession of up to one dry ounce of marijuana. Federal government officials are already saying that they will continue to enforce the Controlled Substances Act, which treats cannabis the same as heroin and LSD. As with other legalized states, the federal/state conflict of laws will persist, uneasily.

One group caught square in the middle are the noncitizens.  Noncitizens include lawful permanent residents, temporary visitors, undocumented aliens and all others who are not U.S. citizens.  Noncitizens routinely have to deal with the Federal Government: immigration court proceedings, applications for immigration benefits (e.g. naturalization, work authorization, permanent residence, green card renewal), seeking entry to the U.S.; CBP checkpoints; visiting national parks; and so on.

Immigration law can be very harsh for the noncitizen when it comes to marijuana. We have seen people denied entry, denied green cards, and denied naturalization, all in relation to legalized marijuana. This year, I wrote extensively on Marijuana and Immigration for the American Bar Association’s Criminal Justice magazine.

In a nutshell, the federal government does not need a conviction to find a person inadmissible to the United States. Inadmissibility can be established with an admission to the essential elements of a controlled substance offense; a “reason to believe” a person is engaged in drug trafficking, or a family beneficiary of its proceeds; misrepresentation; a determination that a person is a drug abuser or drug addict; or for being inadmissible at time of entry. Employment in the budding industry can also have unintended consequences. The laws for removability are different but similar. The legalities can get real complicated, fast, but the point is marijuana and immigration do not mix well.

USCIS officers will  sometimes ask questions about the legal use of marijuana, and this may lead to the denial of adjustments of status and naturalization applications. CBP officers will also ask, and deny admission based on admissions. CBP checkpoints are another point of contact where the issue may arise.  Other things will trigger immigration questions, such as finding marijuana on a person or in their car based on a stop on federal land (e.g. National Park), admission to past illegal use, or marijuana involved in a non-removable offense, such as a DUI.  The agencies are inconsistent in their application of the law.

Legalization will be terrific for immigration in some regards. Minor marijuana convictions in the past have created a basis for removability. These prosecutions in state court will not continue, and thus, they will no longer form the basis for removability. This alone could lead to keeping more families together, decreasing court dockets, and increasing government focus on other concerns.

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