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

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.

In 2010, I was admitted to the United States. In 2012, I was denied entry due to a 1985 criminal conviction. Can you tell me whether I am truly inadmissible to the U.S.?

Question:

In 1985, I was convicted of attempted theft in Canada (I broke a car window). I am a Canadian citizen and currently live in Vancouver, Canada. Last May, I tried to enter the United States, but was denied entry because of my 1985 conviction. I have no other criminal record. Interestingly, two years ago when I tried to cross the border, I was sent to secondary inspection, detained and questioned for 2 hours, but allowed to enter. During my detention, Customs and Border Protection (CBP) managed to damage my classic car that I was traveling in a the time. I filed a claim against them, but it was eventually settled out of court. Last August, my criminal record was completely expunged. CBP claims they can still hold my previous criminal conviction against me. I only cross the border for car shows, charity fund raising events, and to visit friends. Outside of my 1985 conviction, I have never had any other legal issues. Can you provide me with any input as to whether I am admissible to the United States, I can't seem get a consistent answer from CBP?

Answer:

Thank you for contacting the SRW Border team with your question. You are certainly not the first person to receive inconsistent answers from Customs and Border Protection (CBP). As I recently told a client, CBP officers may be professional and at times helpful, however, in reality, officers should never be your only source of guidance regarding your immigration matters.

We receive many questions relating to previous criminal convictions and their ramifications on admissibility. While each case we receive is different, our initial approach is always the same: through our consultation process, thoroughly review the case and then discuss the case in detail with the client and determine the best strategy moving forward depending on our clients goals.

I imagine that the claim you filed against CBP may have resulted in some ill will; however, CBP cannot use that as a ground for denying your admission into the United States. As far as your conviction is concerned, we would like to review your complete court record to determine: (1) if the conviction makes you inadmissible to the United States for immigration purposes, and (2) how the current disposition of the conviction affects your admissibility. Even though your conviction is from 1985, was your sole conviction and it has been expunged, if it indeed is an ‘conviction’ as defined under the Immigration & Nationality Act, it could very well mean that you are inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). However, as mentioned above, we would need to determine whether you do indeed have a ‘conviction’ for immigration purposes, whether it falls under any of the enumerated exceptions, etc. In the event that your court records do not provide enough information, we will likely ask that you request your RCMP. It may even be beneficial to make a Freedom of Information Act (FOIA) request to obtain your complete CBP record.

Once we understand the disposition of your conviction and how it affects your admissibility, we will likely have one of two choices: (1) if our research determines that you are indeed inadmissible to the U.S. because of your criminal conviction, help you prepare a nonimmigrant waiver application packet (Form I-192) for submission to the Admissibility Review Office; or (2) if our research indicates that you are not inadmissible, we can provide a service called a “controlled admission.” A controlled admission typically includes the following: (1) a comprehensive professional analysis of the client's U.S. immigration issue(s); (2) preparation and submission of a detailed packet outlining the reasons why you are admissible to U.S. Customs & Border Protection (CBP) at a local Port of Entry; and (3) attorney accompaniment to the local Port of Entry for your admission.

For more information about your case, we encourage you to contact our office and schedule a consultation to speak with the SRW Border team and receive a thorough professional analysis of your case. We look forward to hearing from you.

I was stopped at the border and issued an expedited removal order. I have been living in the U.S. for the past 10 years and now I am barred from returning to my home. What can I do?

Question: I was stopped at Rainbow Bridge on December 30, 2012 and was sent to secondary where I was questioned for hours. I was told by officers that I would not be allowed to enter the United States and fly back to California. I have been living in California for the past three years with my fiancé. Now, officers at the Rainbow Bridge told me that I “overstayed” and that I misrepresented myself. I was presented with a document that indicated I was barred from entering the United States for five years. I have read your blog listing many cases with hopeful options. I understand that I will need waiver(s) and was hoping I would be able to parole in for a short entry to at least put my belongings in storage (these are my belongings accumulated over my entire life that I worked hard for). I would also like to see my fiancé who is in a very emotional unstable place right now without my support and care. What are my best options? When officers questioned me, I was shocked, very nervous, and scared. This has never happened to me in all of my travels back and forth from the United States and Canada.

Answer: Thank you for your question.

Based on your email, it seems that CBP is alleging that you may have accumulated unlawful presence and is charging you with misrepresentation. We have had a considerable amount of success in resolving these issues – whether through a waiver or through requests that CBP review their previously issued decision; however, each strategy is developed on a case-by-case basis, so this is the reason why we highly encourage a consultation.

Unlawful Presence

Generally, when an individual is in the United States without proper permission/status they begin to accumulate “unlawful presence.” A (3) three-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of “more than 180 days but less than one year,” and a (10) ten-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more and who seeks admission within 10 years of his or her removal. While there are some exceptions, we do not know if any apply to you at this time without further reviewing your immigration history – especially since you indicated that you have frequently traveled back and forth from Canada in the past and you are a Canadian citizen who was likely given a ‘soft inspection’ on many instances.

Misrepresentation

Generally speaking, anyone who attempts to enter the United States through fraud/misrepresentation can be found inadmissible pursuant to INA § 212(a)(6)(C)(i). The penalty for willful misrepresentations is a lifetime bar to the United States, unless the foreign national is successfully able to have the fraud charge vacated or obtains a waiver of this ground of inadmissibility.

Expedited Removal Order

You indicated that CBP issued you a document stating that you were banned for five years from re-entering the U.S. More than likely, you were issued an Expedited Order of Removal, which is an ‘informal’ removal process which prevents you from re-entering the U.S. for a period of five years or until you are able to obtain a waiver of the same.

Parole

In your email you mention applying for parole. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time and usually involves a degree of urgency. Recently, Customs and Border Protection ("CBP") has been less willing to extend parole to anyone who does not meet a higher threshold of "humanitarian need."

Since you seem eager to understand what options may be available to you, I strongly encourage you to call our office at your earliest convenience and set up a consultation to speak with the SRW Border Lawyer team. A consultation will give us an opportunity to look closely at each aspect of your case and develop a strategy for you that addresses your unique and specific immigration matters, as well as meets your short-term and long-term goals. We look forward to hearing from you.

I was "flagged" and denied entry into the United States as a visitor in B-2 status. What can I do to correct any negative information in my file maintained by Customs and Border Protection?

Question

Dear SRW Border Lawyers,

I am a Canadian citizen and I currently live in Toronto, Ontario, Canada. Last week, I was denied entry into the United States at the U.S. Customs and Border Protection preclearance at Pearson International Airport. My primary purpose for traveling to the United States was to visit/tour and meet with my friend (and employer) who was also traveling on B-2 visitor status.

At the preclearance, I was extensively questioned by CBP when I explained that my flight was purchased by my employer as a bonus for my work with the production company that he owns in Canada. When asked what I do for a living, I stated I was a TV Producer, and I was then promptly sent to secondary.

After about an hour, I was told I was inadmissible to enter the United States. I was photographed, fingerprinted, and given a document to read and sign. I found the document inaccurate and did not sign it. No other clear information was given to me as to the reason I could not travel other than CBP believed I was being dishonest about my reason for visiting, and they believed I was seeking entry to work. I was informed, however, that I was not banned and that I could attempt to re-enter at a later date.

I went to the Air Canada desk to explain my situation, and was told I was rescheduled on a later flight. I was also informed that as long as I was told I was not banned that I could attempt to reenter the customs area and plead my case to another CBP official. I then checked back in and told a different CBP officer my situation. He said he believed me and would like to send me through, but I had been “flagged” and was required to enter secondary.

During my second visit to secondary, CBP officials said that in order to gain entry I had to bring documents that proved I was going to Los Angeles only to visit and a letter from my friend explaining why he paid for my air travel. After being unable to contact my employer, I cancelled my trip and left the airport.

I have no idea why I was found inadmissible. I am concerned that this ordeal will affect future travel to the United States. What can I do to correct any negative information in my file?

Answer

Thank you for your question. Based on what you briefly described, it appears as if you were simply turned away because CBP did not feel that you qualified for B-2 (visitor for pleasure) status, either because they felt that you did not establish that you had strong ties to Canada and/or they felt that you were seeking to enter the U.S. to work (which is not a permissible B-2 activity).

In general, CBP will issue documents or take a sworn statement from you if something more serious than a denial resulted from your encounter. Since no documents were issued and you were told by CBP officials to return when you could provide additional information, there is a good chance that no harmful action was taken. When the government fails to issue explanatory documents or provide adequate reasoning for a denial, it is understandable how you may be hesitant to reapply for admission into the United States. You cannot help but think that your next attempt will undoubtedly result in a permanent bar. Furthermore, it is not helpful when CBP begins to throw around terms like “flagged,” which only heighten your anxiety.

In situations such as yours, when you have little information about why you were denied, one service that we provide for our clients is to submit a FOIA request to see what, if anything, is in their file. FOIA requests can be made to the Department of State, Customs and Border Protection, or United States Citizenship and Immigration Services. Unfortunately, FOIA requests take around 6-8 months to process, so expect a wait once you submit your request. Once we received a client’s complete file, we completely review the file and develop a strategy moving forward that meets the client’s short and long-term goals.

Aside from making a FOIA request, there is little else that can be done other than going back to the border with “stronger ties” and applying for admission. Additionally, due to our proximity to the border, we also offer a service we refer to as “Controlled Admission.” A Controlled Admission allows us to accompany our clients to the border and guide them through the inspection process. We understand that applying for admission can be daunting, but with a Controlled Admission, we are able to personally advocate on behalf of our client at the border should any issues arise.

At this time, the best solution I can offer is to have you schedule a consultation with our office so we can thoroughly discuss what documents/information you presented at the border, about your conversations with CBP and determine a strategy for moving forward. We look forward to speaking with you.