U.S. Citizenship and Immigration Services (USCIS) issued guidance Friday that could prevent green card holders from becoming U.S. citizens if they are suspected of engaging in marijuana use — even in states and jurisdictions where it is legal.
Thirty-three states and the District of Columbia have legalized medical marijuana, and 10 states and the District of Columbia have legalized recreational marijuana for adults.
Non-citizens living in these areas may believe that using marijuana will not hurt their immigration status, but that reasonable assumption is incorrect. This USCIS guidance establishes that a “violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing [good moral character] for naturalization even where the conduct would not be a violation of state law.”
The guidance isn’t necessarily new. Because marijuana is a Schedule 1 drug and possession of it is still a federal offense, USCIS officers must take it into consideration when reviewing an application. In the past, for example, visitors to the United States have lost their tourist visas after agency officials checked their phone and found photos of them in front of marijuana dispensaries.
What is new is that this practice is now codified into USCIS guidance — explicitly telling officers that even if there is no drug conviction, and even if the person has not admitted to the offense, they should consider denying the case based on good moral character.
“I’m afraid that what happened today means that much worse stuff is going to happen in the immigration context,” Kathy Brady, senior staff attorney at Immigrant Legal Resource Center, told ThinkProgress. “It’s been a little bit isolated on how they ding immigrants for stuff like this, but now that it’s in the manual I fear that it is going to be seen as kind of a mandate.”
The Immigrant Legal Resource Center has for years warned about this very problem, issuing advisories warning their clients to stay away from marijuana until they are a U.S. citizen, to remove any text or photos relating to marijuana from their social media accounts and phone, and to never discuss conduct involving marijuana with immigration, border, consular, or law enforcement authorities.
“I tell my clients that even when they get their green cards, they cannot go to a dispensary, they cannot work in a dispensary, they cannot have anything to do with marijuana even though it is legal [where they live],” Aaron Hall, an immigration attorney based in Aurora, Colorado — where recreational marijuana has been legal since 2014 — told ThinkProgress.
This locks out green holders and other non-citizens from one of Colorado’s fastest growing industries. In the United States, the marijuana industry has created more than 211,00 jobs, according to a Leafly study. Non-citizens employed in the marijuana industry could be labeled an “illicit trafficker” and be made eligible for deportation.
“And there are no warnings to them about that,” Hall added. “They would have no idea, because they can just walk into the shop and everything is above board and they would have no idea unless they have happened to talk to an immigration lawyer about it.”
The same applies to non-citizens who have been authorized by a doctor to legally use medical marijuana to treat pain or other chronic illnesses.
“I’m in touch with a woman who really needs medical marijuana to deal with pain maintenance. She got in a car accident, they tried to give her opioids, and she almost died. [USCIS] is refusing to naturalize her because she’s using marijuana so she’s committing a federal act,” Brady said.
One way to address this issue is to remove marijuana from being a Schedule 1 drug on a federal level. As a Schedule 1 drug (alongside heroin), marijuana is considered by the federal government to have no medical value and a high potential for abuse.
Even though individual states have taken up the the issue to legalize marijuana, federal government policy is still lagging behind and in many cases still trumps state law. Congress can reschedule marijuana, as Sen. Cory Booker (D-NJ) has proposed in the Marijuana Justice Act — but a Republican majority in the Senate and the Trump administration’s hardline stance on drug enforcement does not bode well for that legislative path.