Cannabis Legalization, Immigration and the Biden Administration

President Biden has a history of being tough on cannabis, particularly due to his role with the “War on Drugs” in the 1990s.  During his campaign, there was some support for medical marijuana, but it is less clear where he stands on recreational marijuana.

Fifteen states have now fully legalized cannabis, and 36 states have some form medical legalization. National and regional polls show broad bi-partisan support for legalization in some form. Support for legalization is on the rise in red conservative states. South Dakota, a very conservative state, became the first state to simultaneously approve recreational and medical marijuana legalization in 2020, through a pair of initiative votes. Several on the Biden leadership team have voiced past support for some form of legalization. Cannabis legalization – decriminalization could be a “unity issue” for the Biden team.

The immigration piece is trickier. On his first day in office, Biden sent to Congress a sweeping immigration reform bill. If passed, it will easily be the biggest change in immigration reform we’ve seen in decades. Passage though will be hard, as we’ve seen how easily past comprehensive reform bills can fail, despite serious efforts and good intentions.  I think there’s a good chance the bill will be broken into different pieces, to make things more politically manageable. But I’ve been surprised before, for both good and bad, when it comes to DC.

The immigrant needs in regards to cannabis legalization are different than the general public.  The Immigration and Nationality Act has several different provisions which can get a noncitizen into immigration trouble. In brief, concerns include (1) convictions for controlled substance offense; (2) admission to essential elements of a cannabis – controlled substance offense ; (3) cannabis offenses involving moral turpitude; (4) reason to believe engaged in cannabis trafficking, which includes working in a state-legal position; (5) financial benefit from a family member working in the industry; (6)  misrepresentation in pursuing any immigration benefit (did you ever smoke?); (7) drug abuser or drug addict; and (8) mental condition related to cannabis use. Big picture: cannabis presents many issues which effect a non-citizen’s admissibility, permanent residence eligibility, removability (deportation), and ability to naturalize. Family members and employers are impacted too.

The new Biden immigration bill seeks to reform the immigration courts, and provide more discretion to immigration judges, which is much needed in the interests of justice. This could be helpful in the removal context, for persons facing issues related to cannabis, depending on how much discretion is allowed. Too often, small offenses that now are not even state offenses are grounds for deportation. The White House announcement on the bill also says it will focus on international traffickers. These provisions need to be worded carefully, so that legitimate cannabis businesses are not caught up in this language.

It is important that the legislation have some sort of post-conviction relief for past cannabis possession-related violations and admissions. Similarly, it would be helpful to have some review process created for determinations of drug abuser, drug addict, and sufficient rehabilitation. Waivers of inadmissibility provisions should be more flexible, so that adjudicators can make determinations based on the totality of circumstances, rather than be limited by 30 gram waiver maximums for possession violations.

There are many administrative law changes that be taken to promote justice in relation to legalized cannabis. The Trump Administration issued guidance making it a per se lack of good moral character to be working in the cannabis industry, even if the work is perfectly legal in a legalized state.  Similarly, use of medical marijuana prescribed by a physician is viewed as a good moral character issue. These are unjust policies, as good moral character isn’t really in play when persons are following state law. Further, the outcomes of a finding of lack of good moral character can lead to a removal action being instituted in some cases, and/or making international travel risky. This is just plain not fair.

Adjustment of status adjudicators also can be granted more discretion on matters like this, rather than spend time trying to trap applicants into admissions to past use, when they’ve never had a conviction. Border officers can be instructed to limit inadmissibility in regards to admissions surrounding past use. Easy and necessary changes, which promote family unity and equal protection of laws.

It has been suggested that the Cole memorandum, issued by the Obama-era Attorney General, should be reinstated. This memo allows deference to the states to set up systems for regulating cannabis legalization. This would be good, absent legislation, but reinstatement should also specifically speak to the noncitizen issues. Simply, if a noncitizen is acting consistent with state law, whether it be cannabis use or cannabis industry work, they should be treated just the same as a citizens, and be eligible for immigration benefits.