Immigration and Marijuana Don't

Immigration and Marijuana Don’t Mix by Sonseere H. Goldenberg - Wednesday, March 17, 2021

The U.S. Drug Enforcement Agency’s (DEA) website describes how it classifies, or schedules narcotics and other plants and drugs. Federal criminal law considers Schedule I drugs to be the most dangerous and addictive.

Surprisingly, marijuana is a Schedule I drug under Federal law and some states’ laws.

The DEA states that:

“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote”

The Immigrant Legal Resource Center (ILRC) produced a well-done and straightforward video on the immigration consequences of using marijuana: What Every Noncitizen Must Know About Cannabis and Immigration. Anyone who is looking to enter or remain in the U.S. temporarily or permanently should watch this.

What are the risks for immigrants?

Plenty. It’s hard to believe, but the consequences can be severe unless the amount is less than 30 grams, which can trigger a personal use exemption under immigration law. But even then, if someone has either a criminal record or immigration-violation history already, he or she may lose the benefit of this personal use exemption. An immigrant could face deportation, loss of

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lawful permanent residency, jail, inability to become a citizen, or be denied admission to the U.S. after a trip abroad, among other consequences.

Considering how many states have legalized cannabis for recreational use, medical use, or both, it is hard to believe that the federal government can potentially use this against someone. But it can and it does.

What if it is legal in your state?

The federal government regulates U.S. immigration law, not the states. Therefore, federal drug laws apply in immigration matters, in addition to state drug laws. But federal drug laws will always apply, even if a state legalizes a substance. Analyzing immigration cases in the context of criminal law is a very complex process and in fact, has become its own sub-specialty among immigration lawyers.

Immigrants and nonimmigrants, even those lawfully present in the U.S. must be extremely careful to avoid any criminal conduct. All foreign nationals who entered lawfully or unlawfully are at risk. The topic of criminal conduct—and what constitutes criminal conduct—is a broad one, that is beyond the scope of this article. Even the nuances of cannabis use under each of the 50 states’ laws, as analyzed under federal drug laws, are dizzying.

What do all immigrants need to know?

Under federal law, cannabis, commonly known as marijuana, is a Schedule I drug. Using cannabis recreationally at home, is still a federal crime, regardless of whether it is legal in the state. Using medicinal cannabis pursuant to a prescription from a physician where it is legal in a state, is a federal crime. The federal government has prosecuted people for drug trafficking, simply for working in the cannabis industry. S. Customs and Border Patrol has the authority to search your phone and laptop for any signs that you may have used marijuana, including party photos on social media, emails, or text messages, and deny you entry into the country. They know that many people will admit to using it because it is legal in certain states under some circumstances. Another cannabis-like substance used by some East African immigrants called khat, is not listed specifically by that name, but rather by the chemicals it contains, cathinone and cathine. Usually, by the time it arrives illegally in the U.S. its potency has waned significantly. However, if law enforcement tests it for, and finds, the presence of the Schedule I drug cathinone, or even cathine and you are charged with possession, use, trafficking, or paraphernalia, the charge can affect your immigration status. Even if you have your green card, you risk losing it depending upon the quantity of marijuana in your possession, how long after you obtained your green card you used it or were charged with possession of it, and other factors.

Bottom Line

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If you are an immigrant or are in the U.S. on a nonimmigrant visa as a student, visitor, temporary worker, for example, do not use any drugs or substances listed on the federal drug schedules. This includes cannabis or marijuana where it is legal under state law for either medicinal or recreational use.

Hopefully, in the next few years, the federal government will remove small amounts of marijuana from the list of Schedule I drugs that lead to such severe and often-irreversible immigration consequences. If you are thinking of filing for any immigration benefit, or traveling after an arrest, stop, or conviction, consult with an immigration attorney beforehand.

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