Cross-posted at lexcannabis.net

On February 9, 2021 I received an e-mail from the California Bureau of Cannabis Control. According to this e-mail, refugees and asylum seekers “who apply for licensure by the Bureau of Cannabis Control may seek an expedited licensure process.” In an apparent attempt to help, the State of California may be unwittingly making it more difficult for these people to immigrate to the United States.

Procedures for obtaining permanent residence and citizenship

Like nearly all requests for U.S. immigration benefits, the procedure for refugees and asylum seekers applying for permanent residence and citizenship proceeds according to the following general sequence:

1. Wait for the time between filing the application and obtaining lawful status in the U.S.
2. Wait for the time between obtaining refugee or asylum status and becoming eligible to file a request for permanent resident status.
3. Wait for the time between applying for permanent resident status and receiving a green card.
4. Wait for the time between receiving a green card and applying to become a naturalized U.S. citizen.
5. Wait for the time between applying for naturalization and taking the oath of citizenship.

According to the e-mail that I received from the Bureau of Cannabis Control, anyone in steps (2) through (5) may seek the expedited licensure process. No one who has not completed step (5) should be applying for a cannabis license, expedited or otherwise.

Applicants for Adjustment of Status – Steps (2) and (3)

Applicants for adjustment of status must file Form I-485 with USCIS, and be “admissible” as an immigrant (INA § 245). Each applicant must also complete an interview with a US Citizenship and Immigration Services (USCIS) officer. If the officer “knows or has reason to believe” that the applicant “has been an illicit trafficker in any controlled substance… or has been a knowing aider, abettor, assister, conspirator or colluder” or is the spouse, son, or daughter of any such person, then the applicant is inadmissible. As of this writing marijuana remains a Schedule 1 controlled substance under U.S. law.

U.S. Customs and Border Protection’s (CBP) current policy is that aliens working in the marijuana industry in the United States are inadmissible due to drug trafficking.

If an alien is entering the United States to engage in the marijuana business, whether as an employee of a company or the owner of the company, would be inadmissible. The Immigration and Nationality Act (“INA”) establishes that aliens may be denied entry into the United States if there is a reasonable ground to believe that they are or have been “a knowing aider, abettor assister, conspirator, or colluder with others in the “illicit trafficking” of a controlled substance. INA § 212(a)(2)(C)(i). If a business engages in “some sort of commercial dealing” in the United States, admittedly production, sale, and distribution of marijuana to the public, the applicable legal standard is broad enough to render inadmissible aliens whom [REDACTED] as well as aliens who have more directly trafficked in a controlled substance.

Although it is USCIS, and not CBP that makes a decision to approve or deny an application for adjustment of status, I am unaware of any public statement indicating that USCIS interprets the law differently than CBP.

Form I-485 asks the applicant directly if he or she has ever trafficked in controlled substances. Form I-485 also seeks detailed information related to the applicant’s employment within the past 5 years, including the name and contact information for the employer. During the adjustment interview, a USCIS officer will ask the applicant these questions again. Any applicant whom the officer believes is inadmissible due to drug trafficking will have his or her adjustment of status application denied and may then be subject to removal proceedings. Importantly, there is no waiver available for inadmissibility due to drug trafficking.

Applicants for naturalization – Steps (4) and (5)

After an alien obtains permanent resident status, he or she must remain a permanent resident for the requisite amount of time before applying for naturalization. An applicant for naturalization must meet all of the requirements, including the requirement for possessing good moral character. Permanent residents may also petition for green cards on behalf of their spouses, unmarried sons, and unmarried daughters.

However:

• Violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law.

And

• The spouse, son, or daughter of anyone that a USCIS officer has “reason to believe” was an illicit trafficker in a controlled substance, is inadmissible.

Obtaining a marijuana license would give a USCIS officer reason to believe that the permanent resident was a drug trafficker, and thus his or her spouse, son, or daughter would be inadmissible to the United States. By itself, obtaining a license may not be a violation of federal controlled substance law, but a finding of good moral character by a USCIS has a discretionary component. The fact that an applicant for naturalization has obtained a marijuana license may indicate to the reviewing officer that the applicant plans to engage in trafficking after becoming a citizen. Such an indication would not help the cause of obtaining citizenship.

Conclusion

The federal government is actively seeking information regarding participants in the marijuana industry. Recently the Drug Enforcement Agency (DEA) sued the Bureau of Cannabis Control to enforce its subpoena seeking the unredacted names of applicants for cannabis licenses. On August 21, 2020 the Federal District Court for the Southern District of California issued an order granting the DEA’s motion to enforce this subpoena. If the DEA shares the information it receives in response to this subpoena with USCIS, and it reveals that an applicant for adjustment of status, or citizenship has been engaged in drug trafficking, then the applicant may be subject to a denial. If the applicant fails to disclose details related to a marijuana license, he or she may be subject to a finding of fraud as well. Severe consequences may extend to the spouse, son, and daughter of an applicant as well.

I have yet to see any federal agency take a positive view of the cannabis industry. Agencies within the Department of Homeland Security, which administers the immigration system, have been particularly hostile to commercial activity involving marijuana. To date, I have not seen any public statements that would indicate that these agencies are changing their position. Refugees and asylum seekers considering a cannabis license should pump the brake. Then, put it in park and turn off the ignition.