Marijuana and Immigration

In recent years, numerous states have begun legalizing the growth, possession, and distribution of marijuana for medicinal and recreational purposes. While the “legal” marijuana industry appears to be strong and vibrant, it can present non-citizens with challenging and unintentional consequences.

Although marijuana is legal in some states, federal law still considers the possession of marijuana to be illegal. As a result, non-citizens may face significant immigration consequences if they engage in conduct constituting a marijuana offense.

This article describes the Immigration and Nationality Act’s (“INA”) provision that makes a non-citizen inadmissible if they have a conviction related to marijuana or merely admit to a marijuana offense. Additionally, this article explains the conditions that must be met before an admission to a marijuana offense can trigger grounds of inadmissibility.

Consequences of Inadmissibility

As a preliminary matter, it is helpful to know why inadmissibility can be so damaging. When individuals are inadmissible, they face significant barriers in numerous immigration contexts. Several examples are described below:

• Seeking Admission: When a non-citizen seeks admission at a U.S. port of entry and is determined to be inadmissible, the U.S. Customs and Border Protection (“CBP”) officer refuses them entry into the United States.
• Prerequisite for Lawful Status: Admissibility is a prerequisite for many immigrant and nonimmigrant classifications, such as lawful permanent residents and U visas. Inadmissible non-citizens will be unable to qualify for many forms of lawful status in the United States.
• Adjustment of Status: In order to become a lawful permanent resident through adjustment of status, the non-citizen must establish their admissibility. If a non-citizen is inadmissible due to a controlled substance violation, they will not be eligible to adjust their status.
• Naturalization: Lawful permanent residents who intend to become naturalized citizens must demonstrate good moral character for a specific time period. However, if the lawful permanent resident has committed a marijuana offense during the relevant time period, the individual is statutorily prohibited from establishing the requisite good moral character. The individual should stop possessing marijuana and wait to apply for naturalization until they have accumulated good moral character for the requisite time period.

Marijuana Inadmissibility

There are several inadmissibility grounds related to marijuana. The two discussed in this article are the criminal grounds and the medical grounds (drug abuse and addiction).

Criminal Grounds: Conviction or Admission

The INA penalizes non-citizens who admit having violated any law related to a controlled substance, including marijuana. U.S. federal law considers it illegal to possess, grow, or sell marijuana and contains no exceptions for medical uses. Therefore, if anyone possesses, grows, or sells marijuana, even in the comfort of their own home or for a medicinal purpose, they are committing an offense in violation of federal law.

If a non-citizen is convicted of a marijuana-related crime, they are automatically considered inadmissible. While a conviction is sufficient to establish inadmissibility, it is not required. If a noncitizen either (1) admits to a marijuana offense or (2) admits to conduct that constitutes the elements of a marijuana offense, they may also be considered inadmissible. Thus, a non-citizen may be inadmissible without the U.S. government possessing a single piece of evidence about the controlled substance violation.

Notably, even a single violation related to a controlled substance may render a non-citizen inadmissible.

Non-citizens may be questioned in various immigration settings. An admission in any of these contexts may lead the non-citizen to be inadmissible. These settings include:

• Upon inspection at the border
• Before an immigration judge while in removal proceedings
• In an interview with United States Citizenship and Immigration Services (“USCIS”)
• When speaking to law enforcement officers, including the police and Immigration and Customs Enforcement (“ICE”)

Medical Grounds: Addiction or Drug Abuse

A non-citizen may also be considered inadmissible if they are found to abuse or be addicted to a controlled substance like marijuana. The abuse or addiction must have occurred recently, such as within the past year.

Unlike with the criminal grounds of inadmissibility, immigration officers are not authorized to determine whether someone is inadmissible based on their drug abuse or addiction. Instead, a panel physician who conducts immigration-related medical exams must make the determination.

Because abuse of a drug is a much lower threshold than addiction, panel physicians may be willing to find that an individual abuses marijuana even if the person has only used the drug on several occasions.

Requirements for an Admission to Trigger the Controlled Substance Inadmissibility Grounds

Either an admission to the marijuana-related offense or an admission to the elements of the offense may be sufficient to trigger the controlled substance inadmissibility ground. However, several safeguards exist to ensure that non-citizens’ statements about marijuana possession actually constitute an “admission.”

In a series of cases in the mid-twentieth century, the Board of Immigration Appeals (“BIA”) considered what standard of communication would appropriately constitute an admission. These decisions set forth several key principles that must be followed before an admission to the elements of a marijuana offense triggers the inadmissibility ground.

One of the formative cases discussing these principles is known as Matter of K. In Matter of K, the BIA decided that a statement is only considered an admission if the non-citizen is provided:

1. An adequate definition of the crime and its essential elements, and
2. An explanation of the crime in understandable terms.

These requirements help ensure that non-citizens do not unwittingly admit to a controlled substance offense. As established by Matter of K and other related BIA decisions, all admissions to controlled substance violations must be free, voluntary, and unequivocal.

Discretionary Waiver

• 212(h) waivers excuse inadmissibility grounds for certain criminal offenses. Marijuana-related inadmissibility grounds may be waived if very strict and specific requirements are met.

In the context of a marijuana possession, an individual may only be eligible for a § 212(h) waiver if the offense was:

1. A single offense of simple possession of marijuana, and
2. The possession was of 30 grams or less of marijuana.

To apply for the waiver, Form I-601, Application for Waiver of Grounds of Inadmissibility must be submitted. The waiver is discretionary, which means that even if all requirements are met, immigration officials are not required to grant it.