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Marijuana use and Immigration

Both medical and recreational use of marijuana has become legalized or decriminalized in many countries throughout the world, as well as in many states throughout the United States. Because marijuana is treated differently by governments throughout the world, including in the U.S., individuals who immigrate to new countries – especially the United States – must understand what they are allowed and not allowed to do regarding marijuana. This article discusses what United States immigrants must know about marijuana laws in the United States. 

Is Marijuana Legal in the United States? 

Yes and No. Medical marijuana is legal in 36 states and the District of Columbia, and recreational marijuana is legal in 18 states and the District of Columbia.

At the same time, marijuana in any form is still illegal under U.S. federal law. This means that individuals who use marijuana in a state where it is legal may still be subject to prosecution under federal law.

How is Marijuana Regulated in the United States? 

Most of the laws that control what private individuals can and cannot do are enacted and enforced by the U.S. state governments where individuals live. Yet, when federal law and state law say opposite things about what individuals can and cannot do, the federal law will be enforced despite what the state law says — including the regulation of marijuana. 

Even though medical marijuana has been legalized in 36 states and the District of Columbia, and recreational marijuana has been legalized in 18 states, marijuana remains illegal in all forms under U.S. federal law. This means that these state governments will not prosecute individuals who use marijuana; but, the federal government may still decide to prosecute.

It is rare for U.S. citizens to be prosecuted under federal law for use of marijuana in a state where it is legal. This is because the federal government generally respects the right of state governments to decide what is and is not legal in their state, so long as it doesn’t affect a constitutional right. 

However, immigrants/noncitizens may face serious consequences to their immigration status if they use or possess marijuana. This is because immigration status is determined under the sole discretion of the federal government.

Can Noncitizens Use Recreational or Medical Marijuana in the U.S? 

Noncitizens who use recreational or medical marijuana in the U.S. may face serious consequences for violating U.S. federal law, which makes marijuana use illegal.

It is important that noncitizens to the United States remember that immigration law, including the rights of immigrants, is enforced by the federal government. Whenever a determination is made about an immigrant’s status in the United States, it is made under federal law.

Because immigration in the United States is strictly handled under federal law, the federal government will apply federal marijuana law and immigration law to immigrants in the United States — not the marijuana law of the state where immigrants live. This means that immigrants who use marijuana anywhere in the United States, including in those states that have legalized it, can be penalized for using marijuana, such as by facing deportation. 

What Consequences Will Noncitizens Face If They Use, Possess, or Sell Marijuana?

Noncitizens who use marijuana may be deemed “inadmissible” under U.S. immigration law, which is federal law that recognizes and enforces the federal laws that make marijuana illegal — not the states’ laws where it is legal. U.S. immigration authorities who discover a noncitizen has been using marijuana, even if doing so was legal under state law where they reside, may impose serious consequences upon the noncitizen. 

Here is a break down of some of the consequences that exist under U.S. immigration law for noncitizens who use, possess, distribute, or sell marijuana: 

Deportability

Noncitizens who are convicted of a crime related to marijuana under state or federal law can be deported. This includes convictions under laws that ban the use, possession, sale, distribution, manufacture/growth, or transport of marijuana. An exception to this, however, applies to lawful permanent residents who are convicted of possessing 30 grams of marijuana or less are not deportable, but are inadmissible. 

Inadmissibility

Noncitizens who are deemed “inadmissible” are not permitted to enter the United States. This means a noncitizen will be prevented from entering the U.S. at a port of entry by revoking a visa stamp or denying a visa stamp application. 

Noncitizens may be deemed inadmissible if:

  • The noncitizen is convicted of a crime related to marijuana under state or federal law, or admits to using or possessing marijuana, including handling or preparing marijauna.
    • The United States Citizenship and Immigration Services (USCIS) determines whether or not a noncitizen has established that they have “good moral character” with regards to admissibility. According to the USCIS policy manual, the USCIS may determine that an individual lacks good moral character if they are “unable to meet the burden of proof to show that he or she has not committed such an offense.”
  • The noncitizen has participated in or aided and abetted the trafficking of marijuana for commercial purposes, or has benefited from such trafficking by a parent or spouse within the past five years. 
  • The Government has reason to believe the noncitizen participates in drug trafficking.
    • The USCIS has applied this “reason to believe” standard to individuals employed in the marijuana industry in states where it is lawful.
  • The noncitizen travels to the U.S. solely, principally, or incidentally for the purpose of engaging with the marijuana industry. 
  • The noncitizen is found to be currently addicted to marijuana or abusing marijuana.

How to Protect Yourself from Deportation and Inadmissibility Over Marijuana

Because U.S. law surrounding marijuana is confusing and complex, especially for noncitizens, it is important that noncitizens know how to protect themselves from deportation or inadmissibility because of marijuana.

Here are some tips noncitizens can use to prevent deportation or inadmissibility:

  • Make sure you understand the consequences for the use, possession, sale, etc. of marijuana before meeting with any Department of Homeland Security or Department of State employee, or with a doctor at a medical visa interview, and before answering any questions about your history with marijuana. 
    • If you have a history with marijuana, seeking the legal advice of an immigration attorney may be especially important. 
  • Avoid marijuana until you are a U.S. citizen; 
  • Avoid carrying marijuana, a medical marijuana card, or even marijuana paraphernalia, including posting marijuana-related content to social media or elsewhere; 
  • If you have a medical condition that you believe requires the use of medical marijuana, seek legal consultation from an immigration attorney; 
  • If you have a history of marijuana use or working in the marijuana industry, seek legal consultation before exiting the United States, or applying for naturalization or immigration status; 
  • If you have a history with marijuana that you believe may make you “inadmissible,” consult with an immigration attorney before taking any action that would require immigration officials to assess your admissibility. This includes leaving the country with the intent to return, whereupon your admissibility will be evaluated. 
  • Do not discuss any conduct involving marijuana with immigration, border, consular, or law enforcement authorities unless otherwise advised to do so by your immigration attorney. 
    • This includes: 
      • USCIS 
      • Customs and Border Patrol (CBP)
      • Immigration and Customs Enforcement (ICE)
      • Local or state law enforcement (even if it is legal in your state)
      • Consular officers at a U.S. Consulate or Embassy
  • Declining to answer a question from an immigration official (also known as “pleading the Fifth”) may be a preferable course of action for those who use marijuana or have a history of marijuana use.
    • Pleading the Fifth will not erase the issue — a noncitizen may still not be granted admission to the United States; however, a noncitizen may be found permanently inadmissible if they admit to marijuana use or possession. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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