Immigration status and legal pot
by Svetlana Prizant
May 29, 2019 | 3766 views | 0 0 comments | 435 435 recommendations | email to a friend | print
Although many states have legalized or are in the process of legalizing marijuana for recreational use, it remains illegal under federal law.

The legal consequences of either personal use of marijuana or involvement in the cannabis industry can be severe.

Grounds for inadmissibility to the country requires a conviction or admission to having committed a crime related to a controlled substance.

If a foreign national may be convicted under U.S. federal law for marijuana use in the United States, even if the use was legal under state law, such a conviction would render them clearly inadmissible under this statutory ground.

However, it is not clear whether a foreign national who was previously convicted of marijuana use in Canada would remain inadmissible following legalization of marijuana in Canada, as the conduct giving rise to the conviction would no longer be illegal in Canada.

It is also not clear what is required to find a foreign national inadmissible for admission of having committed a crime related to a controlled substance, or acts constituting the essential elements of a crime involving a controlled substance.

Based on a plain reading of the statute, such an “admission” need not occur in the context of any legal proceeding. It would be possible for a U.S. Customs and Border Protection (CBP) officer simply to ask a foreign national at the port of entry, “Have you ever used marijuana?”

If the applicant were to respond in the affirmative, then there would be sufficient grounds to find the person inadmissible for having admitted to committing the essential elements of a controlled substance violation.

While CBP officers do not routinely ask every applicant for admission if they have used marijuana, there are several factors that could set off a line of inquiry.

Examples include having a marijuana-related bumper sticker, smelling like marijuana, or any photographs or comments on social media indicating drug use.

In addition, CBP officers can conduct warrantless, suspicion-less searches of electronic devices. If any of a traveler’s phone contents, including texts, emails, chatting apps, etc., contain drug references, this could also lead to questioning on the topic.

However the inquiry arises, any admission to marijuana use can lead to a finding of inadmissibility. Once such a finding has been made, it can be very difficult to overcome, as there is no way to appeal a finding of inadmissibility.

A non-immigrant waiver remains a possibility; and there are also limited immigrant waivers available to some individuals.

In addition to a conviction-related ground of inadmissibility, CBP officers may refer a foreign national who admits to use of marijuana to a physician in Canada for a medical examination to determine if the applicant for admission is inadmissible on any medical related grounds.

Current laws makes inadmissible any foreign national who is found to have currently or previously had a physical or mental disorder and associated harmful behavior that may pose,, a threat to the property, safety or welfare of others.

In summary, despite legalization of recreational marijuana use under several U.S. states, personal use of marijuana remains a potential ground of inadmissibility to the United States both under criminal and medical grounds.

The manner in which these rules can be interpreted varies widely and there does not appear to be a consensus at the national level as to how U.S. Customs and Border Protection officers should apply these rules in a case-by-case basis.

Svetlana Prizant is an attorney practicing in Forest Hills.

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