“Wait, But Isn’t Pot Legal?” – Immigration Law and Cannabis Present Traps for the Unwary

Legalized cannabis continues to present immensely consequential challenges for noncitizens, their families, and employers.

It has now been ten years since Washington State and Colorado first legalized adult use. Today, eighteen states permit adult use and thirty-seven states permit medicinal use. “Adult use” was once called “recreational use,” but today’s cannabis product lines go far beyond recreation. The natural health appeal of cannabis is recognized widely, and perhaps this is reflected by the many more states that allow medicinal use.

Looking abroad, Canada and Mexico have taken major steps towards decriminalization and legalization. The same is true in other parts of the world. The legal landscape for cannabis is quite varied, here and abroad. Even where legal, there are many ways to violate the controlled substance laws. As examples, some places allow persons to grow plants; age limits and location for possession and use differ; and cannabis licensing systems can be quite complex. Nonetheless, the past ten years have shown dramatic changes.

U.S. immigration authorities seem to recognize none of this. U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) officers say, “We follow federal law.” These agencies more deeply entrenched in this simple position as years go by. CBP and USCIS officers have carefully drafted scripts which they use to extract admissions to cannabis use, legal or not. Neil Young, the famous musician, recently interviewed with Howard Stern and described his call-back naturalization interview, where the officers repeatedly asked about his prior use. Situations like this can be very difficult for clients, and their attorneys.

Justice Clarence Thomas recently noted the sea-change in legalization and the issues this presents for federal and state conflicts of law. “Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.” Standing Akimbo, LLC v. U.S., 594 U.S. ___ (2021) (cert. denied, 6-28-21).

Legalized cannabis is advertised for sale on billboards, in print and digital media, and with stores on the corner. For noncitizens, who are not usually legal experts and may even be language-challenged judging by our naturalization requirements, these are significant “traps for the unwary,” to quote Justice Thomas.

At U.S. borders with Mexico and Canada, it is common enough for someone to have cannabis in their vehicle or on their person. State legalization is in effect all the way down the West Coast, except for at the borders. If confiscated, a $500 Customs fine is likely. Immigration consequences usually follow too, but not always. In the inspections process, CBP often takes statements from non-citizens, which are then or later used to establish inadmissibility. These can lead to revoked visas, revoked Electronic System for Travel Authorization privilege (ESTAs), and/or revoked trusted traveler statuses. Sometimes, returning permanent residents can find their status in jeopardy as well. Indeed, it can be very dangerous to travel abroad when legalized cannabis is somewhere in the picture. Waivers and other relief may or may not be available, after the fact. Each situation requires careful examination to find the way forward.

And then there is the cannabis business and the professionals. The legalized industry presents all sorts of concerns. At the forefront, immigration law prohibits aiding and abetting traffickers in controlled substances, and CBP views association with the industry in the United States as trafficking. No conviction is required, just a “reason to believe.” Owning a dispensary is one thing, but the legalized cannabis industry now requires professionals of all sorts. How many degrees of separation from the cannabis plant is acceptable? Also, spouses and children of the noncitizens can be impacted under the trafficking prohibitions. We also see trusted traveler statuses revoked for whole families after a single family member’s border interview. Sometimes issues can be identified before the risk; sometimes clients need help after the fact.

The Immigration and Nationality Act creates a few exceptions for single possession offenses of 30 grams or less. However, the actual weight of cannabis has gotten tricky. There is a broad range of non-leaf products now, including balms, tinctures, sleeping pills, edibles, and drinks. Meanwhile, under the 2018 Farm Bill, commodity hemp is now legal, including certain CBD products with less than .3 % THC. For immigration purposes, these waters are very muddy. Many products are not tested or marked appropriately. We’ve seen persons denied entry for having products on their person, and yet some CBD products are sold at international airports. We’ve also seen the elderly couple who ran into serious problems over CBD sleeping pills. It is a mess.

As with so many things in immigration, Congress can fix the inequities of cannabis legalization. On February 10th, Senators Schumer, Booker and Wyden sent a letter to their colleagues, which begins by citing Justices Louis Brandeis’ famous quote that the states are laboratories for democracy, and then goes on to cite the numbers on legalization and the need for federal reform to align with the reality in a growing number of states. Earlier proposals by these Senators have been favorable for noncitizens. Now is the time to push on this issue in regard to immigrants, as there is a great deal of cross-aisle support. A reform law that recognizes the inequities for immigrants could make a world of difference for individuals, their families, and employers.

While we wait for reform, this increasingly complex landscape must be navigated. We’ll dig deep into the inequities of cannabis legislation and discuss practical approaches for clients at the upcoming AILA Border Issues Virtual Conference on March 30 and 31. Hope you can join us.

by W. Scott Railton