Posts Tagged ‘Marijuana’

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U.S.-Canada Preclearance Agreement In Effect

Friday, August 16th, 2019 by W. Scott Railton

The Department of Homeland Security announced this week that a preclearance agreement is now in effect with Canada. This basically means that major Canadian airports will be on equal footing with land port of entries, legally speaking.

Expedited removal is now a tool airport CBP inspectors can use to find Canadians inadmissible and banned for five years, in cases of fraud and unlawful immigrant intent. Previously, this type of removal –basically a legal fiction with real impacts for someone not in the U.S.—only occured to someone presenting themselves for admission at a land port of entry, or when illegally seeking entry outside a port.

There is very limited recourse for an expedited removal order. In clear cases of error, sometimes they can be overturned. There is also a waiver process, but this usually works best after some time has passed. The criticism of expedited removal is it leaves no real route for appeal: CBP can be judge, jury, and executioner, so to speak, when they apply this measure. Sometimes agents have been known to be a bit too zealous in lowering this boom.

When I testified in the Canadian Senate in 2018 on marijuana legalization, some Senators had new reservations about their passage of the preclearance bill. There have been situations, particularly where someone has already been denied entry once, where I’ve felt better having them seek entry anew at an airport than at a land port of entry, just so expedited removal is not a consideration.

The preclearance rule will also possibly lead to joint operations at smaller ports of entry, such as can be found in rural border crossings. This can save money and lead to efficiencies, though one has to wonder about the sharing of information.

Here is the full announcement:

United States and Canada Implement Preclearance Agreement
Release Date:
August 15, 2019

WASHINGTON, D.C. – The U.S. Department of Homeland Security announced today, in partnership with the Public Safety and Emergency Preparedness Canada, the implementation of an agreement to improve mutual security and expedite lawful travel through preclearance for travelers and their accompanying baggage on certain transports. The collaboration is articulated in the Agreement on Land, Rail, Marine, and Air (LRMA) Transport Preclearance between the Government of the United States of America and the Government of Canada, which supersedes the previous 2001 U.S.-Canada Agreement on Air Transport Preclearance, and expands upon the two countries’ partnership.

Preclearance is the process by which officers stationed abroad inspect and make admissibility decisions about travelers and their accompanying baggage before they leave a foreign port, simultaneously increasing efficiency and security. The LRMA provides the legal framework and reciprocal authorities necessary for U.S. Customs and Border Protection (CBP) and the Canada Border Services Agency to carry out security, facilitation, and inspection processes in the other country.

“Preclearance strengthens economic competitiveness and mutual security, and benefits travelers by expediting their clearance into the U.S. before they ever leave Canada,” said Acting Secretary Kevin K. McAleenan. “This agreement provides the opportunity for CBP to build on six decades of successful operations and, for the first time, to conduct full preclearance in the rail, ferry, and cruise ship environments. This achievement is important for the Department’s security objectives and is another example of just how close the U.S. – Canada relationship stands.”

CBP currently conducts preclearance operations at eight Canadian airports: Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg. CBP officers also conduct immigration pre-inspection at multiple locations in British Columbia in the rail and marine modes; these locations will have the opportunity to convert to full preclearance, per the terms of the Agreement.

“The new Canada–U.S. Preclearance Agreement is now in force, creating new opportunities in all modes of transportation in both Canada and the United States,” said the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. “Expanding preclearance makes travel faster and bolsters trade, while better protecting our rights.”

As the Agreement is fully reciprocal, in addition to the potential expansion of CBP preclearance operations in Canada, the Agreement permits Canada to pursue preclearance operations in the United States. This agreement also enables exploration of co-location at small and remote ports of entry and includes additional tools and authorities to help enforce immigration, customs, and agriculture laws, facilitate lawful travel, and ensure officer protection and accountability.

The LRMA was signed by the U.S. Secretary of Homeland Security and Canadian Minister of Public Safety and Emergency Preparedness on March 16, 2015, fulfilling a commitment of the Beyond the Border Action Plan (Beyond the Border Action Plan). The U.S. Congress passed the necessary supporting legislation in December 2016 and Canada’s Parliament did so in December 2017. Canada published their required implementing regulations in June 2019, paving the way for entry into force following an exchange of Diplomatic Notes today.

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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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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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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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CBP Addresses Canada’s Legalization Of Marijuana And Crossing The U.S. Border

Wednesday, October 10th, 2018 by W. Scott Railton

U.S. Customs and Border Protection published a statement regarding Canada’s legalization of marijuana and crossing the border, which is available at its website.

Most notable:  CBP affirmatively says that persons working in the legalized industry in Canada, without attachment to the U.S. industry, will still be admissible.  See the paragraph I’ve highlighted in bold italics below. Prior public statements by CBP leadership strongly suggested this would not be the case, which seemed counter to the plain language of the Immigration and Nationality Act. I personally questioned such a policy in a story published last month by the Dow Jones’ publication, Market Watch.

I think CBP has it right now, as far as the Immigration and Nationality Act goes. There are many finer legal points though that come into play, when making actual inadmissibility decisions.

Perhaps most importantly, there still is a real need for Congress to take a longer look at the cannabis issue overall, since over half the states have a form of legalization. Until they do, the border will continue to be a hard line on cannabis, drawn between states and provinces which have legalized the substance.

Here is the CBP’s Statement in full, updated on 10/9/18:

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border
Release Date:
September 21, 2018

UPDATED: 10/09/2018

U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana. Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

CBP officers are thoroughly trained on admissibility factors and the Immigration and Nationality Act, which broadly governs the admissibility of travelers into the United States. Determinations about admissibility and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

CBP officers are the nation’s first line of defense in preventing the illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
Last modified:
October 9, 2018

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Canada’s Cannabis Act and U.S. Inadmissibility

Friday, September 21st, 2018 by W. Scott Railton

Canada’s Cannabis Act, otherwise called Bill C-45, legalizes cannabis nationally on October 17th. The starting point for all U.S. border issues is the U.S. Immigration and Nationality Act. With that in mind, I’ve put together a list below of the key provisions of the INA concerning marijuana and inadmissibility.

I. Criminality Related Grounds

A. Personal:

a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];

Note: Cannabis on person/in car: this is a Customs violation, likely warranting a fine and further questions. Not typically referred for prosecution, though a violation of the Controlled Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in crimes involving moral turpitude, a separate basis of inadmissibility.

B. Illicit Trafficking (“Reason to Believe”: no conviction required)

d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];

e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other benefit from the illicit trafficking in the past five years, and knew or reasonably should have known that the financial or other benefit was a product of such illicit activity. [INA § 212(a)(2)(C)(ii)];

II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)

f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];

g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history of behavior posing threat to property, safety or welfare of others [INA § 212(a)(1)(A)(iii)(I and II)]

• Panel physician – have to pay government certified physician for exam
• CDC Technical Instructions requires 1 year of remission

III. National Security- (Unlawful purpose)

h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];

IV. Misrepresentation/Fraud

i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit [INA § 212(a)(6)(C)].

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Scott Railton Testifies Before Canadian Senate Committee on Border

Thursday, April 19th, 2018 by W. Scott Railton

I was honored to speak this week with Canada’s Standing Senate Committee on National Security and Defence concerning Bill C-45, the Cannabis Act, insofar as it relates to Canada’s borders. Legalization hasn’t happened at the U.S. federal level, and this begs many questions about border travel after legalization. Increasingly, I am asked, “What happens when Canada legalizes marijuana for all to use, like in Washington State?” Parliament is now taking up the query, as it studies moving forward with Bill C-45.

There are still many unanswered questions. The U.S. Immigration and Nationality Act and the U.S. Controlled Substances Act haven’t changed on marijuana, despite the sea change in legalization in many other jurisdictions, including Washington State and soon Canada. In our observation, this has led to issues for persons seeking admission or other immigration benefits, with some regularity.

The Senators had questions about how legalization might impact border traffic. My co-panelists were the Mayor of Windsor, Drew Dilkens, and Jonathan Blackham, Director of Policy and Public Affairs at the Canadian Trucking Association. Like me, they expressed concerns. These included possible slow-downs in inspections and increased wait-times; cannabis or cannabis residue being found increasingly in cars and trucks; trusted traveler and FAST interviews; and the queries made by U.S. officers.  The Mayor and I both emphasized the need to educate the public on the conflicts of laws, concerning immigration and cananbis.

I used my introductory remarks to lay out the bases for inadmissibility to the United States that involve cannabis. Even if Canada legalizes cannabis, there are several bases for inadmissibility that may still involve cannabis and affect persons seeking admission. These include admitting to past violations of a Controlled Substance law; health-related grounds related to being deemed a drug abuser or drug addict; national security grounds for inadmissibility relating to seeking entry for an illegal purpose (e.g. to purchase cannabis in a state where it is legalized); misrepresentation related to cannabis questions; involvement in cannabis-related businesses associated with the U.S. (e.g. aiding/abetting illicit trafficking); and customs violations for having cannabis in a vehicle or on a person.

The United States laws on admissibility are more complicated than many might imagine. We know, since this is what we do daily. As I told the Committee, cannabis continues to be listed as a Schedule 1 substance under the U.S. Controlled Substances Act, making it as a matter of law equal to cocaine, heroin, or L.S.D. A Schedule 1 substance is one which has no medical purpose and has a high propensity of abuse. I also acknowledged to the Committee that this is not the popular opinion of the majority of the States, based on voter initiatives. The conflict of federal and state laws will also likely present an issue at the border, should Canada legalize. I said I think there will be “growing pains” as the public and the border adjusts to such a significant change in Canadian law.

The hearing garnered significant attention in the Canadian media, with stories appearing in Global News, CBC, the Windsor Star, and many other outlets. I anticipate the border and legalization will continue to be a matter of public interest to both Canada and the United States, if Bill C-45 moves forward.

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California, Legalization, and Immigration

Wednesday, December 27th, 2017 by W. Scott Railton

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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Adjustment of Status Applications Get Tougher

Wednesday, August 23rd, 2017 by W. Scott Railton

Applicants for adjustments of status to permanent resident are encountering new issues of late.

The basic application form, the I-485, available at USCIS, has been revised, and it now includes a whole lot more questions which can trip someone up. The new form weighs in at a full 18 pages. It used to be 6 pages. And it has questions…lots of questions, like:

Have you EVER been denied admission to the United States?

Have you EVER been denied a visa to the United States?

Have you EVER worked in the United States without authorization?

Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime?)

Have you EVER violated (or attempted, or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?

Applicants can expect that these questions will be read, out-loud, and asked during an adjustment of status interview. We have heard of cases where people admit to use of marijuana, and that doing so leads to further interview questions, and even denial of the petition. Working without authorization, or overstaying a period of authorized stay, can also create serious issues.

Another development for adjustments of status, not quite as recent, is applicants sometimes have to get new medical examinations, due to processing delays, adding costs to the process.

We also understand that USCIS is now sometimes denying travel authorization applications, filed with the adjustment of status applications, if a person travels internationally (e.g. on an H-1B) after the parole application is filed but before it is adjudicated. Adjudications usually take about four months. This is completely new, and hopefully is a development that doesn’t last.

We will continue to monitor what the agency is doing on adjustments of status and other immigration matters, and advocate for a fair, efficient and transparent process. We are available of course to discuss any issues of concern. It is best to resolve difficult issues as much as possible, before presenting the case to the agency.

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Staying Admissible To The United States

Friday, July 28th, 2017 by W. Scott Railton

We frequently meet with Canadians and other nationals who are concerned about their admissibility to the United States. We also advise Canadian defense attorneys about the consequences of a plea or conviction on United States admissibility. Frequently, persons arrive at the border, seeking entry, only to learn that they are inadmissible (or so the government says), and that they will need a waiver.

Here are some tips on admissibility issues, from my perspective as an immigration attorney:

1. Foreign pardons and expungements do not typically help with U.S. immigration. A conviction vacated for substantive reasons might overcome inadmissibility.

2. The sealing of criminal records can present an obstacle for U.S. immigration purposes, as the burden of proof for admissibility is upon the applicant. The U.S. government will want to see those records, even if they’re under seal.

3. Temporary visitor waivers are available, but they are costly and take months to adjudicate, and must be renewed every five years. Permanent waivers for immigrants are more challenging, but are sometimes available, depending on the past offense.

4. The definition of a conviction under U.S. immigration law includes more than just convictions. Admissions of guilt in the record may count too.

5. Any conviction “related to” controlled substances is a basis for inadmissibility. U.S. immigration law is particularly hard on all controlled substances issues. Marijuana is still considered a controlled substance under federal (national) law, even though many states have legalized.

6. Drug abuse, drug addiction, and alcohol abuse are bases for inadmissibility without a conviction. When applicable, the U.S. Government may require an expert opinion from a U.S. authorized civil surgeon on whether a person is a drug or alcohol abuser prior to admission to the United States.

7. A person is inadmissible if the government has a “reason to believe” that she is or has been a drug trafficker.

8. In general, sentences of less than a year are better (e.g. 364 days or less) to avoid the possibility of having a conviction deemed an “aggravated felony” under U.S. immigration law.

9. Misrepresentation at the border is a basis for a lifetime ban from the U.S. They may search the phone or computer, interview friends and employers, and otherwise double-check to see if someone is lying. Lifetime ban if they make that determination, which in time can be overcome through the waiver process.

10. The U.S. law on inadmissibility is a complicated area of law even for U.S. lawyers, including U.S. immigration lawyers. If there are concerns, it is best to consult with us, or someone like us. If worse comes to worse, it may be better to stop answering questions, and ask to withdraw the application for admission.

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