Weed, pot, ganja, grass, Mary Jane, dope, herb, or Chronic… whatever you want to call it, there’s no doubt its moment in the spotlight has arrived. Eighteen U.S. states (and D.C. and Guam) have legalized recreational marijuana consumption. Many more have also decriminalized possession and/or passed medical use regulations. BUT are there any federal recreational marijuana laws? The simple answer is: NOT YET. To date, the federal government has not kept pace with the states, and marijuana use is still a crime at the federal level. As a result, lawful permanent residents, visa holders, and undocumented immigrants alike all face consequences for using marijuana despite recent state laws decriminalizing and/or legalizing use because federal law controls immigration. These consequences include losing their status, not being allowed to apply for citizenship, not being allowed into the U.S. after travelling abroad, and—perhaps the most severe—possibly being deported, all for something that may be legal in their state.
According to a Human Rights Watch report, for more than 34,000 immigrants deported between 2007 and 2012, the most serious conviction was for marijuana possession. Similarly, a TRAC review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of non-citizens are funneled into ICE custody for removal hearings after being charged with low-level marijuana possession offenses. Prior Homeland Security Secretary John F. Kelly has said that “ICE will continue to use marijuana possession, distribution and convictions as essential elements as they build their deportation removal apprehension packages for targeted operations against illegal aliens living in the United States.”
A single marijuana possession offense makes an immigrant inadmissible and/or deportable under the INA which can often close off eligibility for many types of relief from deportation. Similarly, a noncitizen otherwise eligible to receive an immigrant visa would be rendered presumptively ineligible for that visa with one marijuana offense on his or her record, no matter how long ago the offense occurred and how little marijuana was involved. Limited waivers are available but they can be hard to get.
It remains to be seen how federal authorities are going to address the shifting legal situation surrounding marijuana, but in the meantime, the topic is a serious concern for immigration attorneys and their client. Apart from the obvious advice that all noncitizens should avoid use of marijuana given the current divide in law, I would further advise that noncitizens avoid accepting lawful jobs at marijuana shops or dispensaries. Even entry-level work at a facility can be considered by the federal government as aiding drug trafficking. Additionally, under federal law, a conviction doesn’t actually have to exist; an officer’s “reason to believe” that a person has done something that amounts to drug trafficking is sufficient to ruin his or her future.
Another issue with the increased decriminalization of marijuana involves attorney representation in the criminal system. As many states decrease penalties for simple possession to minor citations, more and more noncitizens are simply “paying the fine” instead of contesting the charge, and thus admitting guilt to marijuana violations. As a result, noncitizens are putting themselves in vulnerable positions that can lead to removal from the country without ever appearing in court, receiving advice of counsel, or receiving plea warnings from a judge.
Many have long argued that the current federal inadmissibility and deportability grounds are unfair given how much more severe the consequences to noncitizens are than to citizens who violate or commit the same minor offenses. What may only yield a small fine in criminal court, may also get a noncitizen deported in immigration court. In my opinion, the injustice has never been clearer than it is right now. There is no excuse for the continued removal or exclusion of noncitizens due to activities considered lawful in their states. Unfortunately, all we can do is wait and hope that at some point federal law will align itself with evolving state law and provide equal justice for all.