New York Lawyer's Legal Updates

When A State Marijuana-Related Arrest Or Activity Can Become A Citizenship Problem

Author: US citizenship Lawyer Alena Shautsova

Recently, in response to states’ trying to decriminalize the use of marijuana, USCIS published policy updates stating that certain actions even though might not be criminal on a state level will be regarded as a “problem” when it comes to Immigration. The exact language of the USCIS’s announcement reads as follows:

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing a good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

In the manual, it states that the prohibition on GMC will be relevant for the statutory period, which is 5 years in most cases. What actions should be excluded from the ones that would render an applicant lacking GMC? In the author’s view: all dismissed charges; all adjudications of charges without actual punishment; and, of course, per manual, single possession of 30g or less of marijuana. Working in the industry that deals with medical marijuana should also not fall under the umbrella of “illegal” activities. However, it seems this issue will be subject to litigation if USCIS accepts the position that state-legalized work is “illegal” under the Federal laws. After all, one can foresee that those state workers will be subject to Federal labor laws and regulations, and their activities will be taxed and as such should be considered “legal” under the Federal laws as well.

Lastly, conduct that is legal in other countries may be illegal in the US under the same policy. For example, if a US LPR would go to Canada and engage there in what is otherwise legal conduct related to the US controlled substance, such an LPR may face difficulties returning to the US and may be placed in removal proceedings upon return. The bottom line is that if you are not a US citizen and had to deal with marijuana (medical or otherwise) in one way or another, you should seek a consultation with an Immigration attorney to make sure past actions will not impede your ability to naturalize. To book a consultation with our office, please email at office@shautsova.com or call 917-885-2261.

22 April 2019
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