Even though over 30 states in the US have legalized marijuana, it is important to consider the possible consequences of both consumption and involvement in trade for aspiring US Citizens. Many permanent residents of a state where cannabis is legalized may be surprised by the reality that marijuana has not been legalized federally and can lead to potential roadblocks during the individual’s naturalization process. This is because the immigration system operates at the federal level, which grants it the ability to override any state laws that contradict it.
USCIS issued a policy guide in April 2019 that clarifies how any manufacture, possession, or distribution of marijuana will be seen as a conditional bar for good moral character (GMC) of the applicant. GMC is one of the primary requirements for becoming a naturalized US citizen and needs to be shown throughout the three-to-five years preceding the filing of the individual’s naturalization application. If USCIS determines that the applicant lacks GMC due to their involvement in the cannabis industry — even in compliance with state law — they may be denied citizenship.
This matter has raised concern among government officials. Rep. Brendan Boyle (D-PA) recently filed a new Congressional bill in March 2021 that proposes that such non-criminal offenses as alcohol and marijuana consumption should not be penalized to the extent of deportation or denial of citizenship. This bill would also offer immigrants who were denied visas or deported solely due to cannabis offenses the opportunity to re-apply or have their documents reinstated.
Though immigrant advocates and lawmakers are working together to challenge the USCIS policy on cannabis, it continues to be enforced amongst non-US citizens. What does this mean for you and your immigration case? This policy will apply to all non-US citizens who are pursuing naturalization and have been affiliated with the cannabis industry at some point during their process. It is important to consider the possibility of citizenship denial, even if your affiliation was legal in your state.
If you are concerned with this policy or how it may affect your immigration status or immigration case, please contact our office at (503) 427-8243.
USCIS issued a policy guidance, clarifying that federal drug violations, including for marijuana, will preclude people from proving “good moral character” for purposes of naturalization, despite marijuana being decriminalized under state law.
The majority of states have legalized medical or recreational marijuana, but federal law continues to consider it as a Schedule I controlled substance with no accepted medical use and a high potential for abuse.
Applicants for naturalization must show they have “good moral character” during the five years before filing their application. In assessing moral character, however, USCIS may check on conduct at any time before the five years and up to taking the citizenship oath.
USCIS has provided that a federal controlled substance violation may bar an applicant for naturalization from establishing good moral character. A conviction under federal drug laws is a clear violation, but you can be barred for just admitting to acts that constitute an offense or admitting to having committed an offense. For instance, possession of marijuana for medical or recreational purposes or a job in the marijuana industry may constitute an act that violates federal controlled substance regulations and could be considered a basis for denying naturalization for failure to prove good moral character, even where the applicant was never charged with a crime and complied with state law.
Applicants for naturalization who are involved in activities related to controlled substances may be deemed to lack good moral character if found to have violated federal law, even if such activity is lawful under state laws.
12 USCIS-PM F.5(C)(1) of the USCIS policy addresses the controlled substances conditional bar to good moral character. Conditional bars to good moral character are set forth at section 101(f) of the Immigration and Nationality Act (INA).
An immigrant is prevented from proving good moral character if he or she violated any controlled substance related federal law of the United States during the period in which he or she must establish good moral character (the “statutory period”). “Controlled substance” is referred as a substance given in the federal controlled substance schedules, found in 21 U.S.C. 802. The conditional bar to good moral character applies to conspiracies to breach controlled substance regulations or abetting and aiding another to do so. The bar adheres if an individual is charged with a qualifying controlled substance offense or if an immigrant admits to committing acts that constitute the vital elements of a violation of controlled substance law.
If an immigrant is found to have committed an “aggravated felony, illicit trafficking in controlled substances” offense (as defined in section 101(a)(43)(B) of the INA), the applicant is permanently prevented from establishing good moral character, regardless of when the offense happened.
The USCIS policy guide does not alter the regulations on controlled substances or bars to good moral character. Instead, it establishes that marijuana offenses constitute conditional bars to good moral character if they fall under federal law even if they are not considered criminal offences under the laws of the state in which they happened. It is vital for immigrants — especially those planning to submit an application for naturalization — to remember that any activities involving marijuana can lead to severe outcomes under the immigration laws, including conditional bars to good moral character. If an immigrant has any doubt about whether a particular activity may negatively change his or her immigration status, he or she should err strongly on the side of caution and consult with an immigration lawyer to resolve any concern.
The policy guidance from USCIS is a reminder that marijuana use carries severe risks to immigration success. In addition to your application for naturalization being refused, breach of a controlled substance law can lead to “inadmissibility,” which can undermine your eligibility for other benefits including a visa, green card, or a change of immigration status. We strongly recommend that applicants seek expert legal counsel for advice in individual circumstances.
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