HOW A MARIJUANA CONVICTION AFFECTS YOUR IMMIGRATION APPLICATION
States across the country are relaxing the laws on marijuana. Some states have decriminalized possession of small amounts of cannabis, typically instructing police officers to issue civil citations instead of arresting the violator. Other states allow medical use of marijuana, while a few have outright legalized recreational marijuana use.
Possessing a joint, therefore, seems like no big deal to many people. Unfortunately, this could not be further from the truth for anyone seeking a green card or a nonimmigrant visa.
A citation or arrest for marijuana possession may have few consequences on the state level, but federal law still categorizes marijuana as a schedule I drug that is illegal, regardless of state laws. The federal immigration laws also classify marijuana as a serious controlled substance. For foreign nationals, possession or use of even a small amount of marijuana can result in inadmissibility or removal.
YOUR LEGAL OPTIONS
You are deemed inadmissible for a controlled substance conviction, which is permanent. Inadmissibility means you cannot get a visa to enter the country and cannot adjust status if you’re already here. In addition, you are subject to removal from the United States.
The law makes a narrow exception for a one-time conviction for possession of 30 grams or less of marijuana for personal use. The immigration agent has discretion about whether to grant you a waiver to obtain a nonimmigrant visa. For a waiver to adjust status, you must show hardship to your citizen or personal resident child, parent or spouse.
You are not eligible for a waiver if you have more than one conviction. Nor are you eligible for a waiver if your charge is for use of marijuana or intent to distribute.
The U.S. Supreme Court ruled in the 2013 case of Moncrieffe v. Holder that an immigrant who is lawfully in the country is not subject to automatic deportation for “the social sharing of a small amount of marijuana.” The defendant in the case pleaded guilty to possession with intent to distribute 1.3 grams of marijuana, which equals about two or three joints. The Court concluded that: “Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understanding of trafficking, which ordinarily means some sort of commercial dealing.”
If you have a criminal record, talk to an immigration attorney about your options for staying in the United States. Contact us to schedule a consultation with a qualified attorney today or browse attorney profiles to connect with them directly.
*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.