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Smoke and Mirrors: Marijuana’s Catastrophic Effect on Immigration Status

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Quickly-evolving marijuana laws are making many Americans optimistic that legalization is on the horizon. Just across the border, the legal use of recreational marijuana in Canada may be authorized later this year. Even so, a foreign national’s chances of staying in the states could go up in flames after a marijuana-related offense. Similarly, a foreign national may be denied entry into the U.S. for marijuana use or marijuana-related offenses.

The gradual legalization of marijuana in the U.S. is creating a false sense of security for noncitizens, who might be under the impression that using marijuana in accordance with state law is harmless. Don’t be fooled: although more states are jumping on the bandwagon of decriminalizing marijuana – marijuana is still illegal under federal law and for immigration purposes federal law is all that matters. Violating federal marijuana laws has serious implications for foreign nationals, affecting admissibility to the U.S. and the ability to apply for naturalization just to name a few. Notably, a noncitizen who admits to an immigration official that they possessed marijuana can be found inadmissible, denied entry to the U.S., or have their application for lawful status or even citizenship denied. Depending on the circumstances, admitting to marijuana possession, can make an LPR deportable – even if permitted under state law and/or the individual was never convicted of a crime.

As of January 2018, the use of medical marijuana is legal in 29 states as well as the District of Columbia. Recreational use has been legalized in the District Columbia and nine states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington. While these state laws legalizing marijuana provide valuable benefits, they have proven to be a trap for unsuspecting immigrants. For example, foreign nationals living in one of these states may readily admit to immigration officials that they have used or possessed marijuana under the assumption that it is safe to do so.

According to a report by the Immigrant Legal Resource Center (ILRC) (as well as our experience), in some states including Washington State “ICE, CIS and CBP agents are aggressively asking noncitizens if they ever have possessed marijuana, in an attempt to hold people in admissible.” Accordingly, before crossing the border and potentially being interviewed by CBP, it is imperative that noncitizens are aware that immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.

Understanding Federal Marijuana Laws

Possessing, giving away, selling, cultivating, importing or exporting marijuana are all considered federal offenses. Working in the marijuana industry – even if it’s a state-licensed operation – counts as drug trafficking. Offenses are applicable to both recreational and medical marijuana because there are no exceptions under federal law for medical or other use. (A medical marijuana card is not a “get out of jail free” card.)

Using or being under the influence of marijuana, as well as possessing paraphernalia, are not federal offenses. Even so, committing one of the aforementioned transgressions will cause problems for noncitizens trying to cross the border. Notably, noncitizens who admit to using recreational or medical marijuana in accordance to state law can be found inadmissible to the U.S. under immigration law.

Consequences of Marijuana for Noncitizens

Potential consequences of marijuana for noncitizens include inadmissibility, removability and ineligibility for naturalization. Specifically:

  • A criminal conviction for a state or federal marijuana offense can make a noncitizen both deportable and inadmissible. (For reference deportability refers to a noncitizen being removable from the U.S. whereas inadmissibility refers to a noncitizen being ineligible to enter the U.S.)

  • Admitting to the commission of a state or federal marijuana offense can render a noncitizen inadmissible to the U.S. even without a conviction. The state laws legalizing marijuana have led to noncitizens mistakenly believing that it is okay to admit to marijuana use or possession when questioned by immigration officials causing irreparable harm to their ability to freely enter the U.S.

  • Noncitizens may be found inadmissible to the U.S. if immigration officials have “reason to believe” the individual participated in drug trafficking – this can include working legally in the marijuana industry. A noncitizen may also be found inadmissible if within the last five years, he or she has benefited from such trafficking by an inadmissible spouse or parent.

  • Admitting to the use of marijuana – even without a conviction – may render a noncitizen inadmissible or deportable for being an addict or abuser pursuant to U.S. immigration law.

  • Committing a marijuana-related offense or admitting to marijuana use may result in a U.S. Lawful Permanent Resident (LPR) being temporarily or permanently ineligible for naturalization. Specifically, an applicant must establish “good moral character” in order to become a citizen and committing a marijuana-related offense does not constitute “good moral character.” Inadmissibility resulting from an offense will count against an LPR. In some cases, it may bar an LPR from applying naturalization for a specified period of time or indefinitely.

As long as federal marijuana laws reign supreme, foreign nationals must remain vigilant and exercise extreme caution with marijuana including disclosing marijuana use – even if permissible under state law – at ports of entry, before USCIS in applications or interviews, to consular officials, at consular visa medical appointments or in removal proceedings.

Some practical advice for noncitizens and marijuana:

  • Simply put: stay away from marijuana if you are not a U.S. citizen.

  • Any photos or text related to marijuana need to be removed from your phone and social media accounts.

  • Do not carry or display any materials that refer to marijuana (for example, a bumper sticker or a T-shirt) when traveling to the U.S.

  • If you have ever used marijuana or worked in the industry do not depart the U.S. or apply for U.S. immigration status or naturalization without first speaking with an experienced immigration attorney.

  • Before obtaining a medical marijuana card speak with an experienced immigration attorney.

  • If you have a medical marijuana card, do not have it on you while traveling to the U.S.

  • This should be a given, but should be emphasized: don’t bring marijuana with you when traveling to the U.S.

  • Don’t discuss any conduct involving marijuana with immigration, border or law enforcement authorities. (The only exception is if your immigration attorney has advised that this is safe.)

Generally speaking, those who have possessed, used, or worked in the marijuana industry should not travel outside of the United States. This applies to anyone who is in the U.S. and is not a citizen – permanent residents included. Departing the U.S. and subsequently returning can put the noncitizen in a compromising position if a CBP officer questions them about marijuana. If questioned, the best option is to decline to answer, then contact an attorney.

If you need legal advice regarding marijuana and its effect on your immigration status, contact us at Serotte Reich: 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consulation.

Inadmissibility Based on Admissions of Criminal Conduct – INA§212(a)(2)(A)(i)

It is well settled and understood that a criminal conviction may form the basis of determining an individual inadmissible to the United States under the Immigration and Nationality Act (“Act”). In particular, INA § 212(a)(2)(A)(i) provides that arriving aliens are inadmissible to the U.S. if they have been convicted of: (I) a crime involving moral turpitude, or an attempt or conspiracy to commit such a crime or (II) a violation of a controlled substance offense of any State, the United States, or a foreign country.

It is surprising, however, that under INA § 212(a)(2)(A)(i), an individual can also be rendered inadmissible for merely admitting to criminal activity even though they may never have been convicted in a court of law for those offenses. Specifically, except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of - (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 USC 802)), is inadmissible.

On its face, the statute indicates that a factual admission of criminal activity by an individual is sufficient to support a criminal charge of inadmissibility. However, ascertaining whether or not an individual has “admitted to committing acts that constitute the essential elements” of such crimes (moral turpitude or a controlled substance offense) is far more complicated.

Fortunately, the Board of Immigration Appeals (“BIA”) has issued case law dictating certain requirements that an “admission” must meet to effectively support a charge of inadmissibility under INA § 212(a)(2)(A)(i). The BIA explained that these rules were not based on any specific statutory requirement but have evolved in an effort to insure a fair hearing and to preclude a later claim of unwitting entrapment. Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by, Matter of E-V-, 5 I&N Dec 194 (BIA 1953). While a majority of these rules have been defined involving crimes involving moral turpitude, they also apply equally to cases involving controlled substance offenses. Pazcoguin v. Radcliff, 292 F.3d 1209 (9th Cir 2002).

In 1957, the BIA issued a landmark precedent decision in which it set forth the following three-part test for determining the legal sufficiency of an “admission” under INA:

  1. The admitted conduct must constitute the essential elements of the crime in the jurisdiction where it occurred;

  2. The applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and

  3. The admission must be voluntary.

Matter of K, 7 I&N Dec. 594. Unless each of these three (3) elements are met, any “admission” made to a U.S. immigration officer cannot form the basis of a charge of inadmissibility. Additionally, the BIA held that in order for an admission to be valid for INA § 212(a)(2)(A)(i) purposes, it must be unequivocal and complete. Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

In response to the BIA’s precedent decisions, requirements have been developed for immigration officers to adhere to while obtaining admissions. For example, the Department of State in the FAM issued procedural requirements consular officers must follow when eliciting admissions to a previous criminal offense that mirror the requirements established by these decisions. Specifically, 9 FAM 40.21(a) N5.1 requires officers to:

  1. Give the applicant a full explanation of the purpose of questioning;

  2. The crime the applicant has admitted to must appear to constitute moral turpitude based on the statute and the applicant’s statements;

  3. Before commencing questioning, the applicant must be provided an adequate definition of the crime, including all essential elements in terms that the individual understands, making certain the definition conforms to the law of the jurisdiction where the offense is alleged to have been committed;

  4. The applicant must admit to all factual elements constituting the crime; and

  5. The applicant’s admission must be explicit, unequivocal and unqualified.

Individuals deemed inadmissible under INA § 212(a)(2)(A)(i) based on an “admission” will forever require a nonimmigrant waiver to enter the U.S. This is a serious consequence and as such, we encourage foreign nationals who have been charged with inadmissibility based on an “admission” to a U.S. immigration officer, who never appeared before a judge or was convicted in a court of law, to consider having their situation reviewed to determine whether all the requirements of an “admission” were properly met. If you were found inadmissible under INA § 212(a)(2)(A)(i), contact our office to have us evaluate whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to enter the U.S.

Erroneous Finding Of Inadmissibility Under INA §212(a)(2)(A)(i)(II) Vacated By CBP – Paying Fine At Customs NOT An Admission To A Controlled Substance Violation

Recently, we assisted our Client, a Canadian citizen, in vacating an erroneous determination regarding his inadmissibility under INA §212(a)(2)(A)(i)(II) [Controlled Substance Violation] and subsequently obtaining admission in B-2 status, without requiring a non-immigrant waiver under INA §212(d)(3) [Form I-192].

In November 2013, our Client attempted to enter the U.S. through the Peace Bridge Port of Entry (POE) in Buffalo, NY to attend a Buffalo Bills game. During his encounter with U.S. Customs & Border Protection (CBP), our Client was alleged to have drugs (less than a gram of marijuana) in his vehicle. As a result, CBP Officers imposed a $500 monetary Customs fine. Upon payment and processing, our Client was escorted back to Canada. CBP exercised discretion and chose not to seek to have our Client criminally prosecuted for a possession offense.

The following Saturday, our Client attempted to enter the U.S. at the Chicago Midway Airport but was denied entry by CBP, advised that he was inadmissible under INA §212(a)(2)(A)(i)(II) as a result of the incident the week before and that he would forever require a non-immigrant waiver in the future to re-enter the U.S. Shortly thereafter, our Client scheduled a consultation with our office to prepare his non-immigrant waiver application.

After an extended consultation with the Client and a thorough review of the facts and his documents, we concluded that CBP Chicago officials had made an incorrect determination regarding his admissibility under INA §212(a)(2)(A)(i)(II). Specifically, CBP at Chicago Midway erroneously concluded that our Client’s payment of a monetary fine was the equivalent of him making an admission to the essential elements of a controlled substance violation. However, our Client did not make any admission that would be legally sufficient to find him inadmissible under INA §212(a)(2)(A)(i)(II) and the mere payment of the monetary fine was not the legal equivalent of an admission.

In fact, the payment of such monetary fines was addressed in a 1995 legal opinion, provided by the General Counsel of the legacy Immigration and Naturalization Service (INS), which clearly and unequivocally stated that, “[a]n alien who agrees to pay the penalty does not by doing so admit having committed acts which constitute the essential elements of a controlled substance violation” under INA § 212(a)(2)(A)(i)(II).

As such, we recommended filing a detailed submission with CBP to request that CBP correct our Client’s records and vacate the finding of inadmissibility under INA § 212(a)(2)(A)(i)(II) since such finding had been made erroneously and was not supported by applicable law or guidance.

With our Client’s consent, we submitted a detailed legal brief, together with supporting documentation, to CBP requesting they vacate the erroneous finding of inadmissibility. After reviewing our submission, CBP Officers concurred with our legal analysis. We later accompanied our Client to the Port of Entry and after inspection and admission, our Client was admitted to the U.S. as a visitor (B-2) - without the need for a non-immigrant waiver.

This resolution was vital for our Client since it cleared up many prospective immigration barriers to the U.S. for him. Had the inadmissibility finding remained, our Client would have required a non-immigrant waiver for the rest of his life – and would therefore need to continuously file non-immigrant waivers, pay applicable fees, and be subject to secondary screening. With the finding of inadmissibility vacated, our Client can continue his unfettered ability to enter the U.S. as a business visitor (B-1) or visitor for pleasure (B-2), or in the future, choose to immigrate to the U.S. if he would like.

Q: How can I return to the U.S. after being deported for a drug conviction?

Q: Dear SRW Border Lawyers,

In 1984, I was granted permanent resident status. In 2008, I was placed in removal proceedings and then removed to the Dominican Republic after serving a prison sentence for a conviction for conspiracy to distribute 300 grams or more of cocaine. I was charged as inadmissible and removable under INA § 212(a)(2)(A)(i)(II) and INA § 237(a)(2) for violation (or a conspiracy or attempt to violate) any law regulation of a state, U.S., or a foreign country relating to a controlled substance. I have been out of the country for several years now, but would like to return to the U.S. to visit my family (especially my daughter).

A: Based on the information you provided in your question, your previous drug conviction will greatly restrict your efforts to visit the United States. Drug convictions are punished severely under immigration law due to the severe negative impact that drugs have on society. That being said, for you to enter the U.S., you must first acquire a waiver for your inadmissibility under INA § 212(a)(2)(A)(i)(II). Unfortunately, your conviction bars you from ever applying for a green card again because there is no immigrant waiver available for your particular ground of inadmissibility. You will, however, be able to apply for a nonimmigrant waiver under INA § 212(d)(3)(A)(i), together with a non-immigrant visa, which will allow you to visit the U.S temporarily if approved for both. 

To learn more about the nonimmigrant visa/waiver process, please click on the INA § 212(d)(3)(A)(i) nonimmigrant waiver (applying at U.S. Consulate) tab under the “Border Solutions” drop down menu.

For further assistance, please call our office to discuss what the best strategy would be in preparing a strong nonimmigrant visa/waiver package.