As Minnesota legalizes marijuana, immigrants must be cautious

As the Minnesota Legislature considers legalizing cannabis, following 21 states and the District of Columbia, I urge lawmakers to consider safeguards for immigrants who are not yet U.S. citizens (not just undocumented Minnesotans). 

What many people do not know is that while states are decriminalizing cannabis — in part to redress racist failures of the War on Drugs — cannabis will continue to be a Schedule 1 drug under federal law. The possession, giving of, selling, cultivating, importing or exporting of marijuana continue to be federal offenses. Such designation impacts the rights of immigrants who are not U.S. citizens.

Immigrants who are not yet U.S. citizens and live in states that decriminalize cannabis may assume that they can partake just like all other adults. The assumption, which I have heard many times, is that since cannabis is legal, why can’t I use it recreationally, buy it, produce it, etc.? But for non-U.S. citizens, the consequences could be devastating.

For example: If you are undocumented in Minnesota and your U.S. spouse sponsors you for permanent residency (aka a green card), you generally have to return to your home country to get approved. Once outside the U.S., you take a required medical exam. If you tell the physician that because you were stressed out with the whole green card process, you smoked a little bit, the consular officer interviewing you and reviewing your documentation could deny your green card. And getting back in the U.S. will be a mess. 

Federal immigration law makes no exceptions for marijuana that has been medically prescribed either. 

Non-U.S. citizens charged with possession of marijuana often face immigration consequences, sometimes as devastating as deportation

The Minnesota proposals currently being considered seek to expunge some criminal records, but when it comes to immigration law, expungements do not always result in desired outcomes.

More sinister, you do not need to be charged with possession of marijuana — a simple admission could bring about consequences for a noncitizen. For example, if you are applying for U.S. citizenship, you must reveal your source of income or work history for a number of years. Say, you worked at a dispensary or owned a weed farm or even merely admit to having used (federally) illegal substances, then you may be denied citizenship or other immigration rights. 

The Federal government has provided warnings about non-U.S. citizens involved in the cannabis industry. From a 2019 advisory: 

  • Violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing Good Moral Character 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 Good Moral Character if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

The risks will become more real once cannabis is legal in Minnesota because immigration agents can ask Minnesota residents for their conduct around marijuana. Minnesota is a border state, and I have run into Customs and Border Patrol (CBP) agents in Grand Marais. We have Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) offices. The Immigrant Legal Resources Center (ILRC) reported in 2021 that ICE/USCIS/CBP agents in Washington —where marijuana is legal — aggressively questioned noncitizens about possession of marijuana in attempts to find them inadmissible (aka potentially deportable).

This is the advice ILRC gives noncitizens:

  • Stay away from marijuana until you are a U.S. citizen. 
  • If you truly need medical marijuana, get a legal consult. 
  • Do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc. Remove any text or photos relating to marijuana from your social media and phone. 
  • If you have used marijuana, or worked in the industry, get a legal consult before leaving the United States or applying for naturalization or immigration status. 
  • Never discuss conduct involving marijuana with immigration, border, consular or law enforcement authorities — unless your immigration attorney has advised that this is safe.

Other states are creating campaigns to inform their immigrant communities about these risks. (This isn’t just on government, however. We as a community need to stay informed and ensure that others in the community are aware of these risks.)

Minnesota’s cannabis legalization law should adapt best practices to protect immigrants as it attempts to redress the racist history of the War on Drugs without creating more risks for immigrants.

I am glad to be back home in Minnesota after a stint in California working in immigration law, and glad to see cannabis will be legalized. I hope the federal government legalizes me before it legalizes weed. Or both at the same time. That would be nice.

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