When State Marijuana Acceptance and Immigration Law Collide
Kaelyn M. Mostafa, a law student at Quinnipiac Law School, recently wrote an article for the AILA Law Journal and reflected on the process and topic, answering questions from AILA’s Editorial Director Danielle Polen:
What about this issue felt timely and important to you?
In light of the Trump Administration’s stark policy reforms, immigration and marijuana have been hot-button issues among American politicians and interest groups.
After President Trump was elected, many issues affecting undocumented immigrants, such as mass deportations, poor detention center conditions, and an uptick in ICE raids, have garnered national attention. However, the struggles faced by legal permanent residents (LPRs) as a result of President Trump’s immigration reforms seemed to go unnoticed by many.
In 2019, U.S. Citizenship and Immigration Services (USCIS) promulgated a policy, which statutorily barred LPRs from establishing the requisite good moral character (GMC) for naturalization if they were involved in marijuana-related activity that was legal in their state.
I began researching the USCIS policy and came across Oswaldo Barrientos’ story. Barrientos is a Denver, Colorado resident and LPR who was brought into the U.S. from El Salvador as an infant. He has lived in the U.S. for 30 years, speaks fluent English, pays taxes, and has no criminal history. When he was an adolescent, his mother was diagnosed with skin cancer. His mother’s diagnosis prompted him to research medicinal marijuana, which eventually inspired him to seek employment in Colorado’s legal marijuana industry. In 2019, USCIS denied his application on the grounds that he lacked the requisite GMC for naturalization due to the nature of his employment.
Barrientos’ story inspired me to write my article, The Effect of States’ Legalization of Marijuana on Good Moral Character and Eligibility for U.S. Citizenship. While I understood the nation’s interest in ensuring that newly admitted citizens comport with our notions of morality, the outcome of Barrientos’ case seemed harsh and unjust. I failed to understand how the government could decide that someone lacks GMC based solely on where they work.
Federal courts have historically interpreted the GMC statute to require a knowing or willful violation of the law. An LPR who works at a legal marijuana dispensary submitted a job application to a legal corporate entity, is protected by labor laws, pays taxes, and receives paystubs. That description hardly bespeaks a knowing or intentional violation of controlled substance laws. On the contrary, it resembles the procurement of legal employment.
Furthermore, the law directs immigration officers to measure a naturalization applicant’s conduct against the moral standards of their community to determine whether they possess GMC. The majority of states have legalized or decriminalized marijuana in some form. In recent years, the substance has been revered for its therapeutic and medicinal benefits. In states where the substance is entirely legal, recreational marijuana has become an ingrained part of social culture. It can no longer be said that society’s moral standards condemn the use of marijuana, particularly in states where the substance is legal. For that reason, to find that an LPR lacks GMC based solely on their employment in a state-legal marijuana industry seems contrary to the law around GMC.
What key points are the most important “takeaways” from the article?
My article seeks to accomplish two main goals: (1) Aid practitioners in navigating the policy on a practical level; and (2) Arm practitioners with well-reasoned law and public policy arguments to oppose the marijuana policy. The article ultimately argues that the GMC statute should not be interpreted to condemn employment in a state-legal marijuana industry.
I hope that my readers will be moved to evaluate whether the Trump Administration’s marijuana policy is fair in light of their own ideas of right and wrong. Given that GMC is supposed to be a reflection of society’s current moral standards, it is the public that should dictate how GMC is measured.
There is pending legislation that would protect LPRs employed in state-legal marijuana enterprises from suffering adverse immigration consequences. I urge readers to contact their local representatives and voice their support for Senate Bill 3097. The text of the bill can be accessed here: https://www.congress.gov/bill/116th-congress/senate-bill/3097.
Are there other resources you’d like to highlight for readers?
https://nypost.com/2019/04/04/trump-administration-accused-of-blocking-citizenship-for-marijuana-workers/ (The New York Post’s account of Oswaldo Barrientos’ story.)
https://www.youtube.com/watch?v=mo5Kv7cxUWo (A YouTube video posted by the Associated Press, which includes interviews of Oswaldo Barrientos and his lawyer.)
Readers interested in the intersection of criminal and immigration law may find the following AILA resources and opportunities useful as well:
Recording from October 29, 2020 – Marijuana: Bridging the Divide Between State and Federal Law – with Mary Kramer, Leonard D. M. Saunders, Ellen Sullivan and Leslie Holman
Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants, 8th ed. by Mary Kramer