Trump Administration: Immigrants in Legal Cannabis “Lack Good Moral Character” for Citizenship
Immigrants who use marijuana or who work within the cannabis industry can be denied citizenship when applying for naturalization, according to new policy alert released by US Citizenship and Immigration Services (USCIS) last week.
The alert asserts that “even where that conduct would not be an offense under state law” an individual found to be involved in cannabis-related activity may still face “immigration consequences” as cannabis remains prohibited under federal law. The USCIS policy manual has been updated to now include a section describing this stance in detail.
Why is cannabis relevant to immigration law?
Naturalization is a process through which immigrants who have been a permanent US resident for at least five years (or three years if they are the spouse of a US citizen) and who meet all other eligibility requirements can apply to become a citizen. One of these eligibility requirements is the ability to prove that the individual is of “good moral character.”
This requirement has long been criticized by scholars and civil rights advocates on the basis that morality is ultimately subjective, and so this can be excessively punitive and exclusionary based on the interpretations of the time.
Presently, the need for “good moral character” requires the applicant to prove that they did not engage in any of the acts listed by USCIS as “bars to good moral character” during a five-year statutory period before their application. Such bars include the likes of previous incarceration for a total period of 180 days or more, providing false testimony, habitual drunkenness, a failure to support dependents, and crimes involving “moral turpitude” such as rape, fraud, or violent crime.
Also included in the current list by USCIS are any previous controlled substance violations — this is the relevant section for those involved with cannabis. The language of the Citizenship and Naturalization policy manual currently defines these violations as the “violation of any law on controlled substances, except for simple possession of 30g or less of marijuana.”
The contents of the updated USCIS policy
While this bar for controlled substances was fairly easy to apply to citizenship applications when cannabis was illegal nationally under both federal and state law, the recent wave of cannabis law reform at the state-level has complicated matters and made this topic into somewhat of a legal grey area.
The policy update from USCIS inserts a new section into the Citizenship and Naturalization policy manual (under Part F, Chapter 5, Conditional Bars for Acts in Statutory Period) which asserts that involvement with cannabis will continue treated as a bar to good moral character, regardless of state law.
“Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana,” the updated policy now reads.
“For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC [good moral character] for the applicant during the statutory period.”
The policy also notes that even if the individual has not been officially convicted or admitted to committing a cannabis-related offense, “he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.”
This new guidance from USCIS clarifies this duality, but it is also an indication that the Trump Administration plans to enforce federal cannabis law more strongly, a departure from the slight relaxation on federal marijuana law enforcement seen under the Obama Administration.
The effect on immigrants in legal cannabis states
Earlier this month, the Mayor of Denver, Colorado, Michael Hancock, wrote a letter to US Attorney General William Barr asking for clarification on this matter of state-legal cannabis and citizenship.
“This week, I met with two legal immigrants – one from Lithuania, another from El Salvador – who have lived here for more than two decades,” wrote Mayor Hancock in his letter. “They have graduated from our schools. They have paid their taxes. They are working to achieve the American dream and complying with the processes in place to become a part of our great society, but were denied naturalization solely because of their cannabis industry employment.”
Colorado, in tandem with Washington, became the first state to legalize recreational cannabis at the state-level back in 2012, and both states now have large, thriving legal cannabis industries which combined employ more than 90,000 state residents.
Mayor Hancock continues, “Denver understands the need for federal laws and regulations regarding citizenship and immigration, but we are seeing the heartbreaking effects that those federal laws and regulations are having on our residents.”
An extension of the American “war on drugs”
Many believe that this new policy alert is an extension of the anti-immigrant rhetoric that has come to define the Trump Administration. Michael Collins, the director of national affairs at the Drug Policy Alliance, told the Independent that he believes this is just another example of how the war on drugs disproportionately impacts communities of color and immigrant communities.
“Taking a step back, this has nothing to do with cannabis – this has to do with this administration never passing up an opportunity to prosecute immigrant communities,” argues Collins.
“The Trump administration has used the war on drugs since the beginning to go after migrant populations,” he added, referencing President Trump’s assertions that a wall along the US-Mexico border would keep drugs from exerting the country, despite statistics implying that the majority of illicit drugs actually enter the US through ports of entry and legal border crossing points.
Jason Ortiz, vice president of the Minority Cannabis Business Association, told Marijuana Moment that he considers the new memo a “callous and irrational decision” on behalf of the administration. “[This] is a reminder that without comprehensive cannabis reform our communities of color will continue to be prosecuted and subject to deportation for activity that is legal for affluent communities around the country.”
“Individuals who commit federal controlled substance violations face potential immigration consequences under the Immigration and Nationality Act (INA), which applies to all foreign nationals regardless of the state or jurisdiction in which they reside.”