Apr. 30, 2021

“Legalization” of marijuana in New York State? Not for non-U.S. citizens

“Legalization” of marijuana in New York State? Not for non-U.S. citizens

On March 31, 2021, Governor Andrew Cuomo signed legislation (S.854-A/A.1248-A) legalizing adult-use cannabis in New York State. Under the Marijuana Regulation and Taxation Act (MRTA), New York joined the majority of states that have loosened restrictions on use of marijuana – whether by allowing medicinal use, decriminalization, or fully legalizing the drug. New York is the 16th state to “fully legalize” the drug, while others offer less generous measures.

Change is in the air. As anyone who has driven down any New York road or highway since March 31st likely recognizes, legal possession of up to three ounces of marijuana was effective immediately. Other provisions to grow, sell, deliver, etc., must await regulations. To many New Yorkers, this development suggests potent prospects for pot-based enterprises of all kinds – but the population of planters, producers, promoters, purveyors and puffers must be limited to U.S. citizens since any non-U.S. citizen risks losing status, being denied U.S. entry, or the denial of other immigration benefits by engaging in virtually any conduct involving marijuana.

Behind this federal-state dichotomy is the Comprehensive Drug Abuse Prevention and Control Act, which was enacted on October 27, 1970. Title II of the Act is the Controlled Substances Act, which classifies drugs in categories from I to V, with Schedule I drugs, substances, or chemicals defined as the worst of the worst: drugs with no currently accepted medical use and a high potential for abuse. “Marihuana” was listed as a Schedule I drug among the subset of “hallucinogenic substances” at the time of enactment and has remained there ever since.

At the state level, the Marijuana Policy Project (MPP) has led the political campaigns in many of the states that have some form of legalization (https://www.mpp.org/). The MPP reported on April 21 that “Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen. Cory Booker (D-NJ) are working on a comprehensive federal cannabis reform bill that is expected to be filed soon. The senators’ bill will prioritize small businesses and restorative justice in the emerging cannabis industry.” A different bill, the Marijuana Opportunity, Reinvestment and Expungement Act (MORE Act) would remove marijuana from the list of controlled substances, end federal criminalization of marijuana, and would be retroactive in expunging marijuana arrests, charges and convictions. A December 4, 2020 vote in the House of Representatives supported the MORE Act by 228 in favor to 164 opposed, but prospects for success are questionable. Despite efforts to remove it, marijuana’s place as a Schedule I drug seems firmly intact, at least for now.

The MPP site notes that “[s]ince December 2014, the Rohrabacher-Farr amendment has prohibited the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. This amendment must be renewed each fiscal year in order to remain in effect and has been included in a series of spending bills.” It now will expire on September 30, 2021, so will need to be taken up again in appropriations. Regardless of any Justice Department prohibition – which applies only to medical marijuana by its explicit terms - U.S. immigration enforcement agencies (U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), the Coast Guard), are part of the U.S. Department of Homeland Security. Therefore, federal prosecution of marijuana offenses is still a very real possibility. Offenses involving marijuana conspiracy, manufacture, possession with intent to distribute, money laundering, and the like can lead not only to imprisonment, monetary fines and immigration consequences, but also the forfeiture of profits, involved vehicles and residences.

So, if you are not a U.S. citizen, put the brakes on. Whether or not a controlled substance is legal under a state law, or the laws of another country (read: Canada), is not relevant to its illegality under U.S. federal law. And one’s immigration status plays a large role in potential consequences under federal law. Generally stated, under the Immigration and Nationality Act (INA), a non-U.S. citizen who has been convicted, of, or admits acts constituting the essential elements of, a violation, conspiracy or attempt to violate any U.S., state or foreign law or regulation relating to a controlled substance is:

  • Inadmissible to the USA – meaning, entry can be denied 
  • Ineligible for a nonimmigrant visa (e.g., visitors, students, temporary workers, etc.)
  • Ineligible for an immigrant visa to travel to the USA for admission as a lawful permanent resident (i.e., a “green card”)
  • Ineligible for adjustment of status (a “green card”) within the USA unless the applicant can prove the conviction was for simple possession of 30 grams or less of marijuana. Even if the requisite de minimis amount of marijuana can be proven by the criminal record, a waiver is required of the applicant

It should go without saying that no person should cross, or attempt to cross, a U.S. land border with any controlled substance – including marijuana. On April 13, 2021, U.S. Customs and Border Protection issued a media release titled CBP Reminds Public that All Marijuana Imports Are Prohibited, noting that “[v]iolators may face several consequences. The contraband and associated paraphernalia will be seized. Individuals can also face federal civil penalties of up to $1,000. CBP officers may also turn the case over to state and local departments for prosecution.”

For those in the criminal justice system, there may be certain exceptions to adverse immigration consequences. One is if a non-citizen can show s/he could have been eligible for federal first offender treatment had the prosecution occurred under federal law. Another exception is if the non-citizen’s conduct occurred while s/he was under the age of 18, but only if the violation was for simple possession or use of a controlled substance.

For most who have already been convicted, those exceptions are unavailable. In those situations, post-conviction modifications to a person’s criminal record, unless they are based on an underlying defect in the original legal proceedings, do not affect the definition of “conviction” under the INA for the purposes of applying visa ineligibilities. While MRTA provides that legalized conduct will be automatically expunged, an expungement will not necessarily remove a conviction for immigration purposes. For example, judicial expungements based on rehabilitative or ameliorative statutes (laws that allow for expungement of a sentence by a court based on a showing that the defendant had been rehabilitated or was otherwise worthy of relief) are not recognized as effective for eliminating the conviction for immigration purposes under Matter of Roldan, 22 I & N. Dec. 512 (BIA 1999).

While vacating a conviction may be possible in some jurisdictions, that does not mean a vacated conviction will eliminate immigration consequences. In Sutherland v. Holder, 739 F.3d 144 (2d Cir.2014), the Second Circuit held that a lawful permanent resident’s conviction remained a removable (deportable) offense despite judicial vacatur because it was obtained “solely for rehabilitative reasons and to avoid adverse immigration consequences” rather than to “cure a defect in [the] underlying criminal proceeding.” For that reason, Court concluded that the 1997 conviction remained valid for federal immigration purposes and it lacked jurisdiction over the petition for review. In its analysis, the Court said that the “case is controlled by Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007). There, we held that the BIA reasonably concluded ‘that an alien remains convicted of a removable offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original conviction.’”

Even if a conviction is vacated for reasons other than avoiding adverse immigration consequences, other grounds of ineligibility might still apply. For example, if a consular officer has a “reasonable belief” that a non-citizen was directly involved in trafficking, importing/exporting, or manufacturing of a controlled substance, s/he may still be found ineligible as a controlled substance trafficker in violation of INA §212(a)(2)(C) [8 U.S.C. §1182(a)(2)(C)], or a drug abuser or addict under INA §212(a)(1)(A)(iv) [8 U.S.C. §1182 a)(1)(A)(iv)].

Therefore, despite the New York State jobs that are expected under MRTA – for growers, harvesters, sellers, manufacturers, distributers, delivery drivers – they, and the resulting economic benefits, are off limits to non-U.S. citizens. All those licenses – with a goal of 50% going to social and economic equity applicants (people from communities disproportionately impacted by the enforcement of cannabis prohibition, as well as minority- and women-owned businesses, disabled veterans, and financially distressed farmers) – are likewise off limits.

How this will play out in the context of federal and state employment laws that otherwise prohibit inquiries into immigration status and the like remains to be seen. We look forward to working with our Whiteman Osterman & Hanna LLP colleagues across the firm’s practice areas as developments occur.


If you would like assistance for a business, employee or family member; to verify or audit the employment eligibility of your workforce; with naturalization or proceedings in the U.S. immigration court system; or for any other matter pertaining to U.S. immigration benefits or status, please contact us at immigration@woh.com or call 518-487-7600 and ask for the Immigration Practice Group.