Immigration & Cannabis Legalization Update

There may be good news on the horizon, in regards to cannabis and immigration. It really depends on how aggressive Congress chooses to be on cannabis reform, and to some extent on the filibuster rule in the Senate, which requires 60 votes to overcome. It is absolutely essential, from a social justice and equal protection standpoint, that cannabis reform legislation directly address the inequities in law regarding cannabis and noncitizens. These of course reach into the admissibility, removability and naturalization facets of immigration, impacting noncitizens as well as their families and employers.

Many think Congress will act on cannabis legalization this session. There is a difference of opinion on whether such action will bring sweeping reform or incremental change. Indeed, this is much like the immigration reform debate, where the discussion turns between “comprehensive” and “piecemeal” reform. Cannabis reform for immigrants could come out of either of these advocacy efforts.

Senate Majority Leader Chuck Schumer says he is committed to cannabis reform, but the filibuster rules of the Senate, which require a 60-vote majority to overcome, may stand as an obstacle to broad reforms. With Congress focused on so many issues, it is also hard to say when cannabis reform will rise into focus, although many think later this year. It is thought that the bipartisan support some aspects of reform have, such as medical and banking, may pave the way for some action.

Several different legalization bills were introduced last session in Congress, each with their own focus and sponsor.  They ranged from legalizing for medical use to full-scale justice system reforms.

The MORE Act is most notable, as it was sponsored by Senator-now Vice-President Harris and Rep. Nadler, and was passed in the House. The Marijuana Opportunity Reinvestment and Expungement (MORE) Act would have descheduled marijuana from the Controlled Substance Act, allowed for expungements of past convictions, and provided social justice reforms related to cannabis. The bill prohibited the denial of health care and certain other benefits related to cannabis use. The bill left it to each State to make their own determinations on legalization.

Senate Majority Leader Schumer sponsored the Marijuana Freedom and Opportunity Act. Like the MORE ACT, this bill removed marijuana from the list of scheduled substances under the Controlled Substances Act. It also eliminated criminal penalties for an individual who imports, exports, manufactures, distributes, or possesses with intent to distribute marijuana. Additionally, the bill (1) established a trust fund to assist women-owned and minority-owned marijuana businesses, required federal research on the impacts of marijuana use on highway safety and public health, authorized federal restrictions on the marketing of marijuana-related products, and authorized grants for state and local governments to expunge or seal convictions for marijuana possession.

Several other bills were championed. Senator Booker sponsored the Marijuana Justice Act. Senator Warren, the STATES Act. Senator Merkley, the Secure and Fair Enforcement (SAFE) Banking Act. Rep. Young (AK) and Rep. Gabbard (HI), The Ending Federal Marijuana Prohibition Act and the Marijuana Data Collection Act. Rep. Steube (R-FL), the Marijuana 1 to 3 Act, which rescheduled cannabis to Schedule 3 of the Controlled Substances Act, from Schedule 1. Rep. Steube also introduced the Veterans Cannabis Use for Safe Healing Act which prohibited the Veterans Administration from denying benefits by reason of the Veteran participating in a state-legal cannabis program.

These bills did not become law, but they illustrate the shape of the discourse.  Generally, even more conservative states may be willing to look at legalizing aspects of banking and medical use. More liberal states seem to favor full legalization and reforms that advance equality in health care and the justice system.

What does this mean for immigration?

Some bills are better than others, when it comes to immigration. Of course, state-legal marijuana continues to create all sorts of issues for noncitizens, whether at USCIS, before CBP or DOS, or in Immigration Court. Admission to use can lead to a denial of an adjustment of status, or admission to the United States. In the past two years, USCIS has issued policy guidance to adjudicators to deny naturalization for working in a state-legal position, or for use within the statutory period for good moral character.

Some of the above bills focus on aspects of state legalization, such as rescheduling marijuana and opening up banking to the industry. However, the broader bills have social justice components, including decriminalization and expungement provisions.

The MORE Act went further however, with a specific section addressing U.S. immigration laws. If this bill or some close semblance of it is to pass, it may help a great deal with immigration. Cannabis is deemed not a controlled substance, for purposes of the Immigration and Nationality Act, and that determination is given retroactive effect. This would have sweeping impact in immigration law, affecting naturalization applications, waivers, admissibility decisions, and removal proceedings, to name a few things. I’ve pasted the language of the MORE Act below.

As new legalization discussions pick up in Congress, it will be essential to advocate for smart cannabis reforms that take care of immigrants. This is a much needed fundamental social justice reform to any cannabis legalization bill.

MORE ACT” EXCERPTS RELATED TO IMMIGRATION (2019 proposed bill)

SEC. 9. NO ADVERSE EFFECT FOR PURPOSES OF THE IMMIGRATION LAWS.

(a) In General.—For purposes of the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act), cannabis may not be considered a controlled substance, and an alien may not be denied any benefit or protection under the immigration laws based on any event, including conduct, a finding, an admission, addiction or abuse, an arrest, a juvenile adjudication, or a conviction, relating to cannabis, regardless of whether the event occurred before, on, or after the effective date of this Act.

(b) Cannabis Defined.—The term “cannabis”—

(1) means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin; and

(2) does not include—

(A) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946;

(B) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination; or

(C) any drug product approved under section 505 of the Federal Food, Drug, and Cosmetic Act, or biological product licensed under section 351 of the Public Health Service Act.

(c) Conforming Amendments To Immigration And Nationality Act.—The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended—

(1) in section 212(h), by striking “and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana”;

(2) in section 237(a)(2)(B)(i), by striking “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana”;

(3) in section 101(f)(3), by striking “(except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana)”;

(4) in section 244(c)(2)(A)(iii)(II) by striking “except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana”;

(5) in section 245(h)(2)(B) by striking “(except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana)”;

(6) in section 210(c)(2)(B)(ii)(III) by striking “, except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana”; and

(7) in section 245A(d)(2)(B)(ii)(II) by striking “, except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana”.

SEC. 10. RESENTENCING AND EXPUNGEMENT.

(a) Expungement Of Non-Violent Federal Cannabis Offense Convictions For Individuals Not Under A Criminal Justice Sentence.—

(1) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act, each Federal district shall conduct a comprehensive review and issue an order expunging each conviction or adjudication of juvenile delinquency for a non-violent Federal cannabis offense entered by each Federal court in the district before the date of enactment of this Act and on or after May 1, 1971. Each Federal court shall also issue an order expunging any arrests associated with each expunged conviction or adjudication of juvenile delinquency.

(2) NOTIFICATION.—To the extent practicable, each Federal district shall notify each individual whose arrest, conviction, or adjudication of delinquency has been expunged pursuant to this subsection that their arrest, conviction, or adjudication of juvenile delinquency has been expunged, and the effect of such expungement.

(3) RIGHT TO PETITION COURT FOR EXPUNGEMENT.—At any point after the date of enactment of this Act, any individual with a prior conviction or adjudication of juvenile delinquency for a non-violent Federal cannabis offense, who is not under a criminal justice sentence, may file a motion for expungement. If the expungement of such a conviction or adjudication of juvenile delinquency is required pursuant to this Act, the court shall expunge the conviction or adjudication, and any associated arrests. If the individual is indigent, counsel shall be appointed to represent the individual in any proceedings under this subsection.

(4) SEALED RECORD.—The court shall seal all records related to a conviction or adjudication of juvenile delinquency that has been expunged under this subsection. Such records may only be made available by further order of the court.