Overview
Numerous states have legalized, or decriminalized, the use of marijuana for medical purposes and, in some instances, adult-use purposes. As a result, the U.S. cannabis industry is growing quickly. Participation in that industry, however, could preclude an individual from becoming a naturalized U.S. citizen.
Under U.S. federal law, marijuana is a Schedule I controlled substance. See 21 C.F.R. § 1308.11(d)(23). As such, it is “unlawful for any person knowingly or intentionally … to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana. 21 U.S.C. § 841(a)(1). Aiding and abetting someone who violates the federal Controlled Substances Act (CSA) also can give rise to criminal liability.
On April 19, 2019, USCIS, a component of the U.S. Department of Homeland Security (DHS), issued a Policy Alert concerning “Controlled Substance-Related Activity and Good Moral Character Determinations.” The “Policy Highlights” include:
- “Clarifies that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law.
- “An applicant who is involved in certain marijuana related activities may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.”
The alert also explains: “This guidance, contained in Volume 12 of the [USCIS] Policy Manual, is controlling and supersedes any prior guidance on this topic.”
Conditional good moral character bar applies regardless of state law decriminalizing marijuana
One of the requirements for naturalization is GMC. See 8 CFR 316.2(a)(7). USCIS evaluates claims of GMC “on a case-by-case basis taking into account … the standards of the average citizen in the community of residence.” 8 CFR 316.10(a)(2).
According to the USCIS Policy Manual: “In addition to the permanent bars to good moral character (GMC), the Immigration and Nationality Act (INA) and corresponding regulations include bars to GMC that are not permanent in nature. USCIS refers to these bars as ‘conditional bars.’ These bars are triggered by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance.” See also 8 CFR 316.10(a)(1).
One of the conditional bars to GMC is a violation of “any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana.” 8 CFR 316.10(b)(2)(iii). The USCIS Policy Manual explains, in relevant part:
An applicant cannot establish good moral character (GMC) if he or she has violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. This includes conspiring to violate or aiding and abetting another person to violate such laws or regulations.
This conditional bar to establishing GMC applies to a conviction for such an offense or an admission to such an offense, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law.
The USCIS Policy Manual then states unequivocally that “Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana”:
A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” or “recreational” use of marijuana. Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. Schedule I substances have no accepted medical use pursuant to the CSA. Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under 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. 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 for the applicant during the statutory period. … Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-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.
The USCIS guidance comes on the heels of similar guidance offered by U.S. Customs and Border Protection (CBP), another component of DHS, in the wake of Canada legalizing marijuana for adult use in October 2018. As previously detailed, CBP has warned non-U.S. citizens involved in the cannabis industry (even in countries or states where marijuana is legal) that “crossing the border or arriving at a U.S. port of entry in violation of [the CSA] may result in denied admission, seizure, fines, and apprehension.”
Client Alert 2019-111
