Serious Immigration Consequences for Drug Use Despite State Law Changes10 Dec 2020
Legalization or decriminalization of marijuana or other narcotics at the state level can mislead noncitizens into thinking using such drugs in accordance with state law is legal. Marijuana, hallucinogenic mushrooms, and many other drugs are controlled substance under federal law. Therefore, the use, sale, purchase, or even the mere possession of such drugs, in violation of the federal Controlled Substances Act, can lead to severe immigration consequences for noncitizens, regardless of how a particular state classifies the drug.
Who is Impacted by a Controlled Substance Record and Admission?
Anyone who is not a U.S. citizen may suffer serious immigration consequences from criminal records and even written or verbal admissions made in connection with controlled substances. Noncitizens is a broad category of individuals ranging from lawful permanent residents (commonly referred to as “green card holders”) to nonimmigrants in the United States for a temporary period, including tourists, students, and foreign national workers. While some categories of noncitizens have more legal protections, a drug offense can result in serious immigration consequences for any noncitizen.
Marijuana and Most Psychedelics are “Controlled” Substances Under Federal Law
Marijuana and its derivatives are classified as Schedule I substances under the Controlled Substances Act, a federal act that regulates the manufacture, import, possession, use, and distribution of certain substances. Similarly, psilocybin, which is the active ingredient in psychedelic mushrooms (commonly referred to as “magic” mushrooms), carries the Schedule I classification. This puts these drugs on par with drugs such as heroin and lysergic acid diethylamide (LSD) under federal law, which deems these drugs as having “no currently accepted medical use and a high potential for abuse.” While a number of states have liberalized their laws on marijuana and psychedelic mushrooms for medical use, and some even for recreational use, the federal prohibition against these narcotics remains in effect all across the U.S.
Inadmissibility and Removability Based on Marijuana-Related Offense
Under immigration law, a foreign national who is convicted of an offense related to a controlled substance generally becomes removable (i.e., deportable) and can be put in removal proceedings. A foreign national who is either convicted of or admitted to having committed the essential elements of such an offense is inadmissible to the United States. An individual who is “inadmissible” cannot obtain a visa foil (commonly referred to as a visa “stamp”) at a U.S. consular post abroad, be granted admission to the U.S., or adjust status to the status of lawful permanent resident (i.e., receive a green card). In addition, a conviction of or admission to committing a controlled substance offense may result in a denial of extension of status or naturalization.
What Constitutes a “Conviction” for Immigration Purposes?
It should be noted that, for immigration law purposes, an individual may be considered to have been “convicted” of a crime under a broad set of circumstances. As discussed in the MurthyDotCom NewsBrief, Criminal Violations and Arrests in the Immigration Context (30.Nov.2020), even many pretrial agreements, deferred judgments, and first offender programs that result in dismissal of charges under state law still could be considered criminal convictions under immigration law.
What Constitutes an “Admission” for Immigration Purposes?
Even without any type of conviction, if there is an admission to having committed the essential elements of a controlled substance offense under state or federal law – or of a foreign country’s laws, if the activity occurred while the individual was in that country – that foreign national could be deemed inadmissible. So, if an admission of a drug offense is made, for example, during an interview for an immigration benefit, or even during a discussion with a civil surgeon or panel physician, this could result in an immigration official making a finding that the foreign national is inadmissible.
Impact of Marijuana Related Activities on Good Moral Character
One of the requirements for becoming a U.S. citizen is that the applicant must establish good moral character. The U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on April 19, 2019, clarifying that involvement in the marijuana industry in violation of federal law may prevent an individual from establishing good moral character, even if the activity is legal under state or foreign laws.
Limited Exception for Possession of 30 Grams or Less of Marijuana
Inadmissibility based upon a controlled substance offense is permanent. In the green card context, there is a limited option for requesting a waiver, or forgiveness, to allow adjustment of status or issuance of an immigrant visa. The waiver, however, applies only to violations involving personal possession of 30 grams or less of marijuana. This type of waiver requires establishing that failure to allow the foreign national permanent admission to the United States will result in extreme hardship to that person’s U.S. citizen or permanent resident child/ren, spouse, or parent/s. This is a high standard to meet and is not even an option for one who does not have a qualifying relative.
Inadmissibility Waivers for Nonimmigrants
Individuals applying for nonimmigrant visas may be able to apply for nonimmigrant waivers based on INA § 212(d)(3). These standards are more flexible, and do not require showing hardship to qualifying U.S. relatives. Such a waiver request, however, is discretionary, and, even if approved, would not allow one to become eligible to later apply for a green card. As of the time of this writing, nonimmigrant waiver applications typically take at least six months and often much longer, to process. More information on this type of waiver is available in the MurthyDotCom NewsBrief, Nonimmigrant Visa Waivers – Process and Criteria (19.Aug.2019).
Foreign nationals are subject to federal immigration laws that prescribe serious consequences for offenses that may not be considered as criminal under state laws. Individuals with questions or concerns on this topic should consult with an experienced attorney. If you do not have an attorney, you may consult with an attorney at the Murthy Law Firm, as we have successfully consulted with and filed waivers in both the nonimmigrant and immigrant contexts.
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