Seyfarth Synopsis: While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits. This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.
Notwithstanding contrary state laws, marijuana continues to be deemed a Schedule I narcotic as defined at 21 U.S.C. § 812((b)(1), meaning it has been found to have “a high potential for abuse”, “no currently accepted medical use in treatment” or a lack of “accepted safety for use of the drug or other substance under medical supervision.” 21 U.S.C. § 812((b)(1)(A)-(C). 21 U.S.C. § 844 makes illegal under federal law simple possession of any Schedule I substance. Current Attorney General Jeff Sessions has rescinded prior Obama-era Department of Justice guidance accommodating State laws on marijuana, particularly those allowing its possession and use for medical purposes. As such, the Department of Justice has returned to an aggressive posture on narcotics enforcement with respect to marijuana.
While the agency has not issued any new guidance or disclosed any changes in adjudication policy, the Department of Justice’s approach is likely to be mirrored in the consideration of such conduct by U.S. Citizenship and Immigration Services (“USCIS”)
8 U.S.C. § 1182(a)(2)(A)(i)(II) makes inadmissible to the United States a foreign national:
“convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21)
At the risk of stating the obvious, lying on an immigration application is also a basis of inadmissibility, 8 U.S.C. § 1182(a)(c)(i), so it is neither here nor there if a violation was denied, where USCIS has in its possession evidence showing the existence of a crime.
8 U.S.C. § 1182(h)(1) does provide for a narrowly available waiver, at the discretion of USCIS, of this inadmissibility in the case of simple possession. That waiver is available where the disqualifying conviction occurred more than fifteen years prior to the application, the admission of the applicant “would not be contrary to the national welfare, safety or security of the United States”, and the applicant “has been rehabilitated.” 8 U.S.C. § 1182(h)(2) provides for a waiver where a showing is made that “denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”
Also 8 U.S.C. § 1182(a)(1)(A)(i) makes inadmissible someone determined to be a drug abuser or drug addict, a determination which would be made by a civil surgeon acting under designation by USCIS. See, USCIS Policy Manual, Volume 8 (Admissibility), Part B Health-Related Grounds of Inadmissibility, Drug Abuse or Drug Addiction (updated July 26, 2018). This ground becomes waivable where a civil surgeon certifies that the applicant is rehabilitated.
While marijuana gains greater legal and cultural acceptance in the U.S., it still presents a considerable hazard for those seeking to obtain or maintain immigration benefits. Given the Federal government’s turn away from Obama-era policies with respect to marijuana-related law enforcement, great care should be exercised in addressing marijuana possession and use issues when seeking immigration benefits. For some, it may in fact turn out to be a disqualifier.