Recreational Marijuana Is Now Legal In California—How Are Non-Citizens Affected?

By Lorella T. Hess & Nancy E. Miller

In California, Prop 64 took effect January 1, 2018, allowing recreational marijuana use for adults over age 21 and the state has allowed medicinal use of marijuana for several years.  However, the relevant federal laws have not changed.  You won’t be facing time in county jail or state prison for your recreational use of pot.  But that doesn’t mean you won’t end up in federal prison, as Attorney General Jeff Sessions has announced that despite conflicting local laws, federal drug laws will be vigorously enforced.

And non-citizens should also be aware that possession of even a very limited amount of marijuana which would not trigger any state penalty whatsoever under Prop 64 can still have severe immigration consequences.  An alien pot-user might end up in ICE detention or even be deported back to your native country.  For immigration purposes, comply with federal law.

If you are not a US citizen, your ability to live in the United States could be under threat if you use marijuana, even if you are careful to comply fully with state law.  Marijuana is listed in Schedule I of the federal Controlled Substance Act (CSA) (along with heroin, cocaine, and meth), and drug offenses are accorded particularly severe treatment under the Immigration & Nationality Act (INA).  A marijuana conviction can therefore make an alien inadmissible or removable, and can even be designated as an aggravated felony.

Someone who is inadmissible is not qualified to be granted lawful immigration status—such as a visa or a green card.  Applications for such benefits can be denied based on a marijuana conviction, and can also be denied based on an admission of marijuana use or involvement in a state-legal marijuana business.  Even family members’ applications could be denied if an alien is involved in a marijuana business, because the business could be seen under federal law as drug trafficking.

Marijuana use could thus lead to a finding of inadmissibility—which could result in denial of a visa or green card application, and then removal from the United States.

          For non-immigrants, waivers are possible if the applicant can show s/he presents a low risk of harm to society, committed a violation that was not very serious, and has a good reason for wanting to enter the US on a temporary basis.

For those who hope to stay in this country long-term (such as those applying for lawful permanent residency of asylum, a waiver of inadmissibility is available but only for one-time possession of a small amount of marijuana.

Even someone who already has lawful status, like an LPR, can be removable from the United States for a marijuana conviction.  A waiver of removability is possible for aliens who have a non-drug trafficking conviction, if they meet the physical presence, good moral character and other requirements.  In addition to statutory eligibility, the alien must convince the immigration officer or the judge that s/he is worthy of a favorable exercise of discretion.  As in all waiver cases, the burden is upon the applicant to prove that the waiver should be granted.  All bases of eligibility must be supported by credible evidence.

More seriously still, while any marijuana conviction can make an alien removable, if the conviction is classified as an aggravated felony it can also make the alien ineligible for the most effective defenses against removal.  Aggravated felons are not eligible for many waivers, asylum, or cancellation of removal, and they become permanently inadmissible to the United States once they are deported.  Moreover, aggravated felons are subject to mandatory ICE detention during the whole time their immigration case is pending.  Aggravated felonies include “illicit trafficking in a controlled substance.”   Possession of more than a small amount of marijuana may be viewed as a trafficking offense.  Also, since marijuana sales and distribution are illegal under federal law, involvement in a state-legal marijuana business could count as an aggravated felony for immigration purposes.

Any non-citizen who has a marijuana conviction, uses marijuana, or plans to become involved in a marijuana-related business should be aware that these state-legal activities are still unlawful under federal law and may well result in being denied admission to the United States, being deported from the United States and/or being denied naturalization. The best advice is “don’t take the risk”.

What should one do who already has a drug conviction or who has taken action in reliance on state law?  Post-conviction relief is a possible resolution and should be explored.  And no one in this situation should apply for any benefit under the INA before consulting with an experienced and knowledgeable immigration lawyer.