Bills
| 3.23.22

Should Marijuana Offenses Not be Grounds for Inadmissibility or Deportation? (S. 2021)

Do you support or oppose this bill?

What is S. 2021?

(Updated September 23, 2019)

This bill — the Removing Marijuana from Deportable Offenses Act — would make it so that marijuana use, possession, and distribution are no longer grounds for inadmissibility or deportation under the Immigration and Nationality Act (INA). This would prevent U.S. Immigrations and Customs Enforcement (ICE) from deporting immigrants convicted of possessing, using or distributing any amount of weed. 

This bill would also allow those who were deported for marijuana-related offenses back into the country to have their visas reissued, as long as they didn’t have any more serious offenses on their records. It would also allow anyone who was previously denied a visa to enter the U.S. as a result of marijuana to reapply.

Argument in favor

Marijuana possession is being wrongfully used as a tool for deportation under the Trump administration. Given how common marijuana use is and many states’ legalization of both medical and recreational marijuana, it no longer makes sense to subject immigrants to penalties under the INA for marijuana offenses.

Argument opposed

While some states have legalized marijuana use within their borders, these local-level decriminalization doesn't change the fact that marijuana remains a Schedule 1 drug at the federal level. Marijuana offenses are violations of federal law, which must be considered in immigration decisions.

Impact

Immigrants with marijuana offenses on their records; immigrants who’ve been deported for marijuana offenses; ICE; and the INA.

Cost of S. 2021

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Cory Booker (D-NJ), who is seeking the 2020 Democratic presidential nomination, introduced this bill to remove marijuana possession from the list of deportable offenses: 

“[The Trump] Administration’s efforts to use marijuana possession as a tool for deportation is disgraceful and misguided. Limited law enforcement resources should not be wasted on deporting people for something two of the last three presidents have admitted to doing. This legislation will remove another one of ICE’s weapons that have been deployed to execute this Administration’s hardline immigration policy.”

In an email to Forbes, Katherine Brady, senior staff attorney with the Immigrant Legal Resource Center, expresses support for this bill. She says, “Thousands of families, including those with U.S. citizen spouses and children, have been permanently destroyed by deportation of a family member based on conviction of a minor offense involving use of marijuana.” Brady adds: 

“Furthermore, the Trump Administration is making it a national priority to penalize conduct with marijuana that is legally permitted under state law. Immigrants who work in the legitimate cannabis industry, from farmworkers to office workers, and who pay federal and state income taxes for their work are facing severe penalties for being 'drug traffickers,'" she said. "So are their minor children. Even people who use medical marijuana in their own homes, in accord with state law, are being penalized. They are being denied naturalization because they lack 'good moral character,' and in some cases are deported. Senator Booker's bill would reverse many of these injustices."

Like Brady, many immigration reform advocates argue that immigrants with state cannabis convictions shouldn’t be subject to deportation if they live in states that have legalized cannabis. In advocates’ view, deporting immigrants with marijuana convictions in states with legal cannabis is the Trump administration’s latest hard-line stance against immigrants. However, it’s worth noting that the staunchly liberal Ninth Circuit Court of Appeals recently held that California’s legalization of marijuana doesn’t protect immigrants from deportation if they were convicted of marijuana offenses before voters voted in favor of legalization in 2016. In its ruling, the Ninth Circuit wrote, “federal immigration law does not recognize the state’s decision to reclassify a valid conviction” because cannabis remains a controlled substance under federal law.

Matt O’Brien, who manages research activities at the Federation for American Immigration Reform (FAIR), argues that as long as marijuana possession and distribution remain crimes under federal law and the INA explicitly denies immigration benefits to foreign nationals who possess or traffic in illicit drugs, it’s not unfair or racist to remove immigrants with marijuana-related convictions from the U.S. He notes, “U.S. citizens are subject to the very same laws governing marijuana use, possession and sales. A native-born American who works in a “legal” pot dispensary in Colorado or Seattle will be denied a federal job, can’t qualify for a security clearance and likely won’t be eligible for a host of professional licenses and trade certifications (e.g., aviation, maritime, HAZMAT transport, etc.).” 

O’Brian concludes that only marijuana legalization at the federal level could end immigrants’ deportation for marijuana-related crimes: 

“[U]ntil such time as U.S. citizens prevail upon Congress to change federal pot laws, marijuana use and the cannabis industry remain off-limits to foreign nationals who want to keep their visas or become citizens.”

In April 2019, U.S. Citizenship and Immigration Services (USCIS) issued a memo clarifying that using marijuana or engaging in cannabis-related activities — including working at a state-licensed dispensary or cultivation operation — makes immigrants ineligible for citizenship because it means that they lack "good moral character (GMC)." In the memo, USCIS writes, “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.” The memo continues to say this applies even to applicants who are involved in marijuana-related activities in states or foreign countries where marijuana is legal.

In a statement, Jessica Collins, a spokesperson for USCIS, noted that federal law requires that people who commit violations regarding federally controlled substances face consequences under the INA regardless of their state or jurisdiction: 

“Marijuana remains illegal under federal law as a Schedule I controlled substance regardless of any actions to decriminalize its possession, use, or sale at the state and local level. Federal law does not recognize the decriminalization of marijuana for any purpose, even in places where state or local law does.”

Jason Ortiz, vice president of the Minority Cannabis Business Association, called USCIS’ memo a “callous and irrational decision” by the administration. He added that it was “a reminder that without comprehensive cannabis reform our communities of color will continue to be prosecuted and subject to deportation for activity that is legal for affluent communities around the country.”

In response to the memo, a group of Senate lawmakers led by Sen. Ron Wyden (D-OR) sent a letter to the Trump administration urging it to discontinue the USCIS’ practice of counting marijuana offenses as counting against GMC. They wrote, “We fear the recent change in USCIS guidance will prevent individuals from seeking state-legal employment in the cannabis industry and prevent meaningful and legitimate contributions to the American economy.”


Of Note: Human Rights Watch (HRW) reports that over 34,000 immigrants were deported for marijuana possession over the 2007-2012 period. This problem has been exacerbated during the Trump administration due to the administration’s recission of Obama-era guidelines that prioritized deporting violent offenders in favor of calling for the removal of individuals charged or convicted “of any criminal offense” regardless of the type of offense.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / FatCamera)