Washington State voters passed Initiative 502 in 2012, legalizing the use of marijuana products for adults 21 and over. Colorado voters approved Amendment 64 to its Constitution in 2012. These interesting developments have received widespread media attention. In turn, we’ve been getting a lot of questions on how these laws will impact U.S. immigration and the border, since marijuana possession and other related offenses are still illegal under federal law. In fact, I was recently quoted in a Canadian Press article on this subject, and then interviewed on Vancouver’s CKNW’s morning show (Listen to the full interview below).
Beware. There are plenty of reasons to believe that federal law will continue to trump state law when it comes to immigration and marijuana, at least in the short term. Marijuana continues to be listed as a controlled substance under the U.S.’s Controlled Substances Act, and the illegal use of controlled substances continues to be prohibited under the U.S. Immigration and Nationality Act. Initial indications from U.S. Customs and Border Protection are that the officers at the border will continue to enforce the federal laws over Washington and Colorado’s experiments in legalization.
Immigration and marijuana don’t mix well. U.S. immigration law is particularly strict in regards to narcotics, and there is a long history of federal cases related to marijuana use. Probably the most famous case was in 1973 when John Lennon was ordered to be deported for a past marijuana conviction in England. He won that case, but only after a long court battle. The cause of deportation order was supposedly a pretext for Lennon’s removal, as his activist efforts were unpopular in certain quarters. In 2006, the battle was memorialized in the movie The U.S. v. John Lennon.
Under current law, a person can be found inadmissible to the United States for (1) a conviction related to marijuana, (2) for simply admitting to committing the essential elements of any marijuana related offense; (3) for reason to believe a person is trafficker of controlled substances; (4) or for being a drug abuser. This is a non-exhaustive list, but it is particularly noteworthy that a conviction isn’t required to bar admission. Once a person is deemed inadmissible, they’ll likely need to seek a waiver, which is expensive and time-consuming to obtain.
Conversations with border officers may go down any number of ways, and of course will be steered by the officers. Some may take an interest in the issue, and some may not. There is always a human element involved when seeking admission. However, lying to a border officer can have serious consequences, as misrepresentation is a basis for inadmissibility and immediate expedited removal.
Now, if an officer at the border knows that a person intends to engage in a violation of the Controlled Substances Act, they can find that person inadmissible at that time, for seeking to enter for an illegitimate purpose. Such a finding would not necessarily necessitate future waivers, though it could, if, for example, the agency decided to require a person to prove they are not a drug abuser. Hopefully U.S. Customs and Border Protection adopts a transparent and uniform approach, as these state laws are sure to confuse people.
Other issues are bound to come up too. For example, a violation of the Controlled Substances Act could impact all sorts of future immigration-related applications, such as trusted traveler applications (e.g. NEXUS), permanent residence applications, and naturalization applications. Foreign investors risk running afoul federal controlled substance trafficking laws if they get involved in financing marijuana businesses. This in turn could have serious immigration implications for both the investors and their families.
Time will tell how this all plays out. The U.S. Attorney General has issued at least three separate memos to its attorneys on how to address state legalization of marijuana cases in the medical and recreational contexts. In brief, these memos encourage prosecutorial discretion in certain circumstances, but by no means cede federal authority over marijuana-related activities. The federal government has on occasion and recently closed some medical marijuana dispensaries and grow operations in Washington State and Colorado, and so it is clearly not turning a blind eye.
For the time being, better safe than sorry seems to be the most advisable policy for noncitizens in relation to these new state legalization laws.