Cannabis continues to be a serious issue for noncitizens, their family members, and employers. The topic comes up in immigration interviews, whether at USCIS Field Office when adjusting status or applying for naturalization; at the border or airports with CBP; or in application for visas at the Department of State. Federal agencies continue to not recognize state legalization. Their position has become increasingly entrenched, despite legalization in some form in a majority of the States. We also hear of issues with trusted traveler applications, panel physician medical exams, and in particular with cannabis businesses. In the case of cannabis businesses, sometimes it is ownership by another family member that creates a concern.
Perhaps there is hope on the near horizon.
The Cannabis Administration and Opportunity Act, introduced by Senators Schumer, Booker, and Wyden on July 14, 2021, is the latest in a string of federal legalization bills that have been introduced over the past few years. The Bill removes cannabis from its Controlled Substance Act listing as a Schedule 1 prohibited substance. Should it pass, much of the federal regulation of cannabis will shift from the Drug and Enforcement Agency to the Alcohol and Tobacco Tax and Trade Bureau, the Food and Drug Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives. These changes will open up banking in this space, as well as regulation and taxation at both the federal and state levels. To some extent, cannabis will be treated more like alcohol is.
The good news here is the the Cannabis Administration and Opportunity Act includes language addressing immigration and the unequal treatment that non-citizens receive in regards to cannabis legalization in the States. Specifically, the Discussion Draft of the Bill says:
This section would prohibit cannabis from being considered a controlled substance for purposes of immigration laws. Under this provision, a non-citizen cannot be denied any benefit or protection under the immigration laws based on events relating to cannabis.
If this passes as is, it would be a game-changer for many noncitizens. With legalization so widespread in the United States, it is not reasonable nor fair to treat a noncitizen differently than a citizen with regard to simple use of cannabis products. A noncitizen should not be banned from the U.S. in this day and age, for using cannabis sleep-aid products sold legally on state law. I have seen this happen for persons seeking admission and with NEXUS applications.
I think the focus of the interest in this Bill is on the industry and in particular its banking restrictions. Senator Booker formerly introduced his own bill last session with a substantial focus on civil rights, as did Senator-now Vice-President Harris. The need for immigration reform and equal treatment under the law has not gone unnoticed, but advocacy on this particular point needs to persist. The cannabis legal experts I have spoken with suggest it is only a matter of time before something passes. Keeping immigration language in the Bill will make a world of difference for the industry, family members, and individuals.
In an interesting twist, this trio of Democrat Senators may have a friend in Justice Clarence Thomas, of all people. The U.S. Supreme Court denied certiorari in Standing Akimbo LLC v. United States at the end of June, but Justice Thomas chose to include an interesting statement on the state of cannabis legalization. To quote:
Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the un-wary. ….
Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana. See, e.g., Halper, Congress Quietly Ends Federal Government’s Ban on Medical Marijuana, L. A. Times, Dec. 16, 2014.
Congress is so slow to act on most things, and so it is difficult to be too optimistic. But the prevailing school of thought is some form of legalization is coming. It will be important for immigrant advocates to stay active in this discussion, to make sure the provisions protecting noncitizens and equality under the law are included in the bill ultimately gets passed. It is not fair for noncitizens to be treated differently than citizens, and then so harshly, when it comes to state legalization.