Marijuana legalization bill proposes to remove immigration consequences

BY Jason Gerrol

Despite the increasing number of states and countries that have enacted laws to decriminalize medical and recreational use of marijuana within their respective jurisdictions, marijuana remains a "Schedule I" controlled substance under U.S. federal law. However, on November 20, 2019, the House Judiciary Committee passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, a sweeping piece of legislation aimed to decriminalize marijuana, provide opportunities for reinvestment in communities disproportionally impacted by the criminalization of marijuana, and remove U.S. immigration consequences, among other changes.

Specifically, in the immigration context, the MORE Act would decriminalize marijuana and remove marijuana from the schedule of controlled substances, such that a non-U.S. citizen (or foreign national) "may not be denied any benefit or protection under the immigration laws based on any event" relating to marijuana (or cannabis).

The current state of immigration law regarding marijuana is complex, but in general, a foreign national who has violated a law relating to a controlled substance may be found inadmissible to the U.S., and therefore ineligible for a U.S. immigrant or non-immigrant visa; removed (or deported) from the U.S.; or denied immigration benefits, such as the ability to apply for naturalization (U.S. citizenship).

The severe immigration consequences associated with marijuana could also apply to foreign nationals who are merely employed by, or associated with, the legal marijuana industry. For example, in response to Canada's legalization of marijuana in October 2018, U.S. Customs and Border Protection (CBP) issued the following statement: a "Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S., however, if a traveler is found to be coming to the U.S. for reasons related to the marijuana industry, they may be deemed inadmissible."

Similarly, on April 19, 2019, U.S. Citizenship and Immigration Services (USCIS) stated "possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC [Good Moral Character]," which is a prerequisite to applying for naturalization.

While the MORE Act would essentially remove the immigration consequences associated with marijuana, the bill may ultimately lack the necessary bipartisan support to be enacted. For the time being, foreign nationals should continue to be mindful of the severe immigration consequences associated with marijuana, including employment within the legal marijuana industry.

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Jason Gerrol

Of Counsel

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