Archive for the ‘Marijuana and Immigration’ Category

CBD and Immigration

Friday, July 19th, 2019 by W. Scott Railton

I’ve had many questions in the past few months about cannabidiol (CBD) and immigration. For now, CBD needs to be treated the same as cannabis. At least, that seems to be the way the U.S. immigration authorities are dealing with it.

Suddenly, it seems CBD is everywhere. Local pharmacies sell it. Cannabis retailers sell it. Some grocery stores. It comes in many forms: oils, skincare products, chocolates, pills, drops, bath salts, creams–the list seems endless. The market is booming. I hear that elderly persons like these products for pain relief and sleep. I’ve spoken with physicians, who have no problem recommending its use. The science is playing catch up, as is the law. Its a very odd situation, from a legal standpoint.

The U.S. Food and Drug Administration says it “recognizes the significant public interest in cannabis and cannabis-derived compounds, particularly CBD.” However, the agency is still studying CBD, and other than one prescription product for epilepsy, it has not approved CBD products. In a recent statement, the FDA said, “We are aware that there may be some products on the market that add CBD to a food or label CBD as a dietary supplement. Under federal law, it is currently illegal to market CBD this way.”

The 2018 Farm Bill removed hemp from the definition of marijuana in the Controlled Substances Act. Hemp is defined as cannabis and cannabis derivatives with .3% or less concentrations of THC, the psychoactive component of cannabis.  The chemistry gets interesting here, as CBD is often a “hemp-oil” or hemp-derived product. It is possible that a manufacturer can produce CBD products from hemp–and it happens all the time. However, the FDA has not caught up the manufacturing sector to implement a regulatory system to do this in compliance with the Controlled Substances Act. The Drug Enforcement Agency has in the past found that CBD products do violate the CSA, and so until the FDA approves such products, CBD products are going to be considered illegal, if push ever comes to shove.

However, the Federal Government seems to look the other way. CBD sales are enabled by state legalization, and intrastate marketing of the products does not seem to run into any federal law issues. Of course, right now, more than half the states have some form of legalization. At least 15 states now have medical only legalization, which would include CBD.

Our interest here is immigration. I don’t have anything favorable to report. From what I’ve seen, immigration authorities are still treating CBD the same as marijuana. I’ve seen individuals lose their visas to come to the U.S. where they have products which have “the attributes of marijuana”.  I’ve seen persons denied trusted traveler status for admitting to using CBD.  I’ve inquired with the Department of State about foreign investment in CBD-related businesses, and the government will only say it takes each case on its merits.

I think it is risky to cross the border with a CBD product in a vehicle, or luggage, as applicable. Marijuana confiscation at the border typically leads to a $500 Customs fine. Admissions can be more problematic, as some admissions can lead to a life-time bar. Similarly, persons working in the U.S. industry are at serious risk for future admissibility.

In the face of adverse consequence, the best legal recourse will depend on the facts. Sometimes legal arguments can be presented. Sometimes waivers are available.

The point of this post is to stress that CBD is not a safe or legal substance for noncitizens, at least at this time. In time, I expect adequate regulation will come into existence for hemp-derived products, but right now it seems the immigration authorities are taking a dim view of CBD.

 

 

Posted in General, Marijuana and Immigration, Scott Railton |

DUI and Immigration Consequences

Friday, June 14th, 2019 by W. Scott Railton

A colleague recently contacted me to ask about a plea bargain deal for a driving under the influence charge. It is always best to consider this sort of thing before making the deal.  Indeed, the Supreme Court says defense attorneys are required to do so.  In the landmark case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court said:

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.'” 253 S.W.3d 482, 483 (Ky.2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney….. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

Now, back to my colleague’s inquiry. I wanted to relay a quick response. Unfortunately, these aren’t always simple matters. Every case is different, on its facts, and the details can very much matter.

The first step in each case is to identify the immigration status and defense goals.  Here are some threshold questions to consider:

  • First, what is the jurisdiction? Laws and consequences differ state to state.
  • Are there any aggravating factors in the case, such as harms to person or property?
  • Is marijuana, legal or not, involved in the case in any way? While it may not be an issue at the State level, it could become a big issue in future immigration applications or proceedings.
  • Is there any other type of controlled substance that is involved in the case?
  • Was the driver licensed? Were they cited for anything beside DUI?
  • What is the driver’s status in the United States? Visa holders with DUI arrests are having their visas revoked automatically.
  • Were there passengers int he car?  Under 16?
  • Is there an alcohol or drug problem? Government guidance usually requires a panel physician examination.
  • Is there any evidence of a physical or mental disorder? This is potentially a separate basis for inadmissibility.
  • Does the individual have trusted traveler benefits, such as NEXUS and Global Entry?
  • Is there a desire to apply for naturalization in the near future, or even a pending application?

U.S. immigration has gotten harder. These are challenging times for even the best qualified applicants. All potential immigration consequences need to be carefully considered before a plea bargain is struck.

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Posted in General, Marijuana and Immigration, Scott Railton |

CBP Pilot Program for Electronic Filing for Waivers for Canadians

Thursday, May 30th, 2019 by W. Scott Railton

U.S. Customs and Border Protection will institute a pilot program for electronic filing of I-192 Nonimmigrant Waiver and I-212 Application for Permission to Reapply for Admission applications. Currently, these applications are filed in person at the Port of Entries and Pre-Flight Inspections. This announcement impacts visa exempt countries, which means principally Canadian citizens.

My initial concern is whether the on-line filing system will adequately accept evidence in support of the application. I suppose that is the benefit of a pilot program; they can decide what works and doesn’t. There are many potential benefits, as outlined in the announcement. The agency is clearly trying to further limit how much it handles immigration benefits issues at ports of entries, which is concerning as an agency goal. The agency similarly extended its L-1 Pilot Program recently, despite heavy criticism from stakeholders.

Here is the agency announcement:

U.S. Customs and Border Protection (CBP) is pleased to announce the pilot of the Electronic Secured Adjudication Forms Environment (e-SAFE) mid-year 2019.  The new online system will allow for electronic filing of Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  Citizens of specified visa exempt countries—Canada, Palau, the Federated States of Micronesia and the Marshall Islands—who are nonimmigrants and have been found inadmissible will be able to apply for a waiver online.  Applicants will be able to view their application status, submit additional information if requested, and ultimately learn the outcome of their online waiver application through this system.

e-SAFE will streamline and reduce the processing time, and provide instruction on how to fill out the applications.  Applicants who submit and pay for electronic filing via e-SAFE must go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the application:

 • Peace Bridge, New York • Lewiston Bridge, New York • Rainbow Bridge, New York • Peace Arch, Washington • Pacific Highway, Washington • Point Roberts, Washington • Toronto Pearson International Airport
 
These are the only ports of entry able to process electronic filing of Forms I-192 and I-212. Other locations will be added gradually and will be published on the e-SAFE public web page and on www.cbp.gov/travel/international-visitors/e-safe and e-SAFE.cbp.gov.  CBP will continue to accept paper filing at ports of entry, but as e-SAFE is added to more ports of entry, paper filing locations will become limited.

Authorized attorneys or accredited representatives will be able to create special managed accounts to assist their clients in completing the application, upload the required documents and pay the client’s application fee once a validated Form G-28 is on file.  However, applicants are responsible for the accuracy of all information submitted on their behalf.

Please review the attached frequently asked questions or visit www.cbp.gov/travel/international-visitors/e-safe for the most current information. 
A separate email notice will be sent when e-SAFE is available for electronic filing.

Sincerely,

Keri Brady, Director U.S. Customs and Border Protection Admissibility Review Office

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Posted in General, Marijuana and Immigration, Scott Railton |

State Statutes Modifying Marijuana Convictions Not Working for Immigrants

Monday, May 20th, 2019 by W. Scott Railton

Increasingly, states and municipalities are adding post-conviction relief for marijuana offenders, as part of marijuana law reform efforts. The basic idea is that someone with a past marijuana conviction can obtain some sort of post-conviction relief, such as a pardon, expungement, or reclassification of the conviction. One immigration issue for the Courts to decide is whether the purpose of a post-conviction relief measure is rehabilitative benefit for the offender, or due to a substantive fault in the prior law. Should it matter? I don’t know, but it does.

Washington State passed such a law this year, SB 5605, which takes effect July 27, 2019.  The new law requires Washington State judges to grant requests to vacate misdemeanor marijuana possession convictions that happened before legalization, if the individual was 21 or older.

Here is the key language:

5)Every person convicted of a misdemeanor marijuana offense, who was twenty-one years of age or older at the time of the offense, may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense. A misdemeanor marijuana offense includes, but is not limited to: Any offense under RCW 69.50.4014,from July 1, 2004, onward, and its predecessor statutes, including RCW 69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense under an equivalent municipal ordinance. If an applicant qualifies under this subsection, the court shall vacate the record of conviction.

Other jurisdictions have taken similar approaches.  For example, California’s Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act, allows certain felony convictions to be “redesignated” as misdemeanors. Seattle, Washington, and Boulder, Colorado have taken affirmative steps to vacate old offenses. Canada is looking at instituting at a nation-wide pardon process.

Will these post-conviction relief measures help immigrants, facing deportation or in dealing with admissibility issues?

The law on post-conviction relief for non-citizens is complicated—really, really complicated sometimes—but a recent case from the Ninth Circuit Court of Appeals is not promising.

The case, Prado v Barr, No 17-72914 (9th Circ. 5/10/19), considered whether a felony conviction of possession of marijuana for sale still counts for immigration purposes, after being reclassified to a misdemeanor based on Proposition 64.

The Ninth said that “federal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction.” The Ninth said it will recognize the vacate of a conviction for a substantive or procedural defect, based on established law. However, rehabilitation, immigration hardship, and/or equitable relief are not suitable bases for vacating the immigration impacts of an original conviction.

The Court then determined that Proposition 64’s provisions were more rehabilitative than substantive in nature, and so not effective. The Court also held that reclassification—which happened in this case—was a limited expungement, rather than a full expungement, and therefore not a complete elimination of immigration impacts in any case.

The Ninth’s decision may still be appealed for en banc hearing, or to the Supreme Court.  The ruling is specific to Proposition 64, but I think it is indicative of how the question may be handled for other state statutes, such as with Washington State’s recently passed law.

Attorneys and their clients facing this circumstance should recognize first that they cannot rely on the state statute for later relief for non-citizens. Also, if seeking post-conviction relief before a state court, the request for relief needs to be carefully considered for it to meet the stringent standards required for relief under immigration law.

 

 

 

 

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Posted in General, Marijuana and Immigration, Scott Railton |

USCIS: Legalized Marijuana Use Will Disqualify Naturalization Applicants, for Lack of Good Moral Character

Friday, April 19th, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it updated its Policy Manual to explicitly state that possession of marijuana, even in legalized states, will disqualify naturalization applicants. The Policy Manual is relied upon by adjudicator’s to make decisions on applications. The agency’s position is legal marijuana use violates the federal Controlled Substances Act, even though the U.S. government allows states to legalize. If an applicant admits to use, they will be found to not have “good moral character,” and their application will be denied.

The agency’s position seems to be that its hands are tied on this issue, in light of federal law. This strikes me as disingenuous, for several reasons.  First, marijuana use should not be tied to “good moral character” in any event.  Many people use marijuana for many different uses, and they don’t have bad moral character, whatever Washington D.C. is doing.  Second, federal agencies aren’t enforcing the Controlled Substance Act like this, and particularly the U.S. Department of Justice. Third, noncitizens, who are tested for basic English as part of the naturalization applications, are here expected to be experts on federal/state law distinctions. That is absurd. Marijuana stores are not hidden from sight.  They are common in states that have legalized, and by all appearances,  legitimate. Fourth, increasingly, there are CBD products on the market–even in grocery stores–that may have attributes of marijuana, and serve other purposes than getting high. Does the purchase of a CBD product, for medicinal purposes, have good moral implications?  Fifth, what if a doctor prescribes a marijuana product? Does a person have a good moral character issue for following a doctor’s orders?

We are also hearing periodically of naturalization applications which are denied because a person is working for a legalized marijuana related business. Such work can be working in the production of marijuana (farms, trimming, testing), working in a marijuana store, or holding an ownership interest in a marijuana-related business.

Naturalization applications cost $725 typically, and are taking the agency more than a year to adjudicate in most locations. A person typically applies for naturalization after residing in the United States for at least three years, if married to a U.S. citizen; or after five years of residence in most other cases. A denied application can be heart-breaking. Also, depending on the agency’s findings and the violations involved, the matter may be considered for a removal hearing.

The time is long past for federal legislators to step in, as policies like this will hurt U.S. families and businesses.

Here is what the announcement says:

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

Please see the Policy Manual Update (PDF, 211 KB) for more information.

 Last Reviewed/Updated:

And here is what the updated Policy Manual says:

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” [19] or “recreational” [20] use of marijuana. [21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. [22] Schedule I substances have no accepted medical use pursuant to the CSA. [23] 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. [24]

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. [25] 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. [26] 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.

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Posted in General, Marijuana and Immigration, Scott Railton |