Permanent Residency Applicants May Face Questions About Recreational Marijuana Use

Harris Beach PLLC

Immigration attorneys in states where marijuana is legal for recreational purposes have recently reported that their clients are now being questioned at their permanent residency interviews about whether they have ever used marijuana recreationally. As we’ve noted before on the blog, the immigration consequences of marijuana use can be severe, leading to a finding of inadmissibility and denial of their applications. It is unclear at this time whether the U.S. Citizenship and Immigration Services (USCIS) officers are asking all permanent residency applicants these questions at their interview in these states, or whether there are certain issues that trigger this line of questioning, such as relevant criminal records, disclosure of prior use on the I-485 Form, or even behavior and/or appearance.

Drug Use and Permanent Residency: How would USCIS know if I used marijuana?

Historically USCIS did not routinely ask applicants about drug use at their permanent residency interviews. It came up, if at all, during the required immigration medical examination, at which the physician may have noted a history of drug abuse or addition. That has recently changed.

In 2017, USCIS updated the Form I-485, which is used to apply for adjustment of status to permanent residency (i.e., to obtain a “green card”) to include the following question:

Also in 2017, USCIS has required that all applicants for adjustment of status to permanent residency (i.e., “green cards”) in the United States attend a personal interview prior to approval of their application. Interviews previously were routinely required only for those applying based on marriage to a U.S. citizen or permanent resident. They are now required for all applicants, including those applying based on employer sponsorship.

The current edition of Form I-485 thus requires applicants to make a disclosure in writing upon submission of the application if they have ever violated or attempted to violate any controlled substance laws in any country. This would include current or prior use of drugs in the United States that are illegal under federal law, which includes marijuana. In addition, if applicants check the box “yes” to indicate that they have violated a controlled substance law, they will now be asked in person at their permanent residency interview about the nature and history of that drug use.

What if I live in a state where marijuana is legal?

While many U.S. states have legalized marijuana for medicinal and/or recreational use, it remains illegal under federal law to knowingly or intentionally possess a controlled substance without a prescription. Marijuana is currently listed as a controlled substance on the federal Controlled Substance Act. Under the Immigration and Nationality Act, an immigrant who is convicted of violating a controlled substance law or who admits to violating a controlled substance law is inadmissible and therefore ineligible for Lawful Permanent Residence, with limited exceptions. This means that even if an individual is not convicted in a criminal court of violating a controlled substance law, USCIS can still determine that he or she is inadmissible if he or she admits to the “essential elements” of a controlled substance violation.

What happens if I admit to having used marijuana a long time ago?

Even a single instance of marijuana use a long time ago could lead to a finding of inadmissibility under a strict reading of the statute. Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act makes inadmissible to the United States:

...any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))...

One attorney obtained and has circulated a copy of a template of a sworn statement that USCIS officers reportedly are using to inquire about the nature and amount of applicants’ drug use. The line of questioning is designed to lead an applicant who admits to even a single instance of past drug use into admitting that he or she has committed the “essential elements” of a controlled substance offense. A portion of the templated sworn statement reads as follows:

This line of questioning seeks to establish a legally valid admission to the essential elements of the offense. Both USCIS and the Department of State have issued guidance on what constitutes a such an admission. Department of State guidance at 9 Foreign Affairs Manual 302.3-2(B)(4) advises officers to “observe carefully the following rules of procedure which have been imposed by judicial and Board of Immigration Appeals decisions” regarding legally valid admissions. While this guidance relates expressly to admissions of the essential elements of crimes involving moral turpitude, the same principles apply to admissions of the essential elements of crimes related to a controlled substance and require that the crime must relate to a controlled substance; that the officer provide the applicant with an adequate definition of the crime including all of the essential elements, and explain the definition to the applicant in terms he or she understands; that the officer provide a full explanation of the purpose of the questioning; that the applicant be placed under oath and the proceedings must be recorded; that the applicant must admit all of the factual elements constituting the crime; and that the admission must be “explicit, unequivocal and unqualified.” The USCIS templated line of inquiry precisely follows these guidelines.

Any applicants for adjustment of status who answer “yes” to the question on the form regarding violation of controlled substance laws should be prepared for this type of inquiry at the time of the interview, and should understand that admission to the essential elements of such an offense would lead to a finding of inadmissibility which would bar one from the United States for life—not just as a permanent resident, but for any purpose, even to visit, absent a waiver.

Are there any exceptions?

One major exception to the ground of inadmissibility related to a controlled substance violation is commission of the offense while under the age of 18. Chapter two of the USCIS Policy Manual, entitled “Adjudicative Factors,” provides that while in general a guilty verdict in juvenile court does not constitute a conviction for immigration purposes, a conviction of a minor under age 18 will be considered a conviction for immigration purposes if the person was convicted as an adult.

Similarly, the Foreign Affairs Manual provides at 9 FAM 302.4-2(B)(5) that:

An alien who is convicted of or who admits to having committed or who admits committing acts which constitute the essential elements of a minor drug offense(s) relating to simple possession or use of controlled substances, i.e., offenses other than those involving trafficking, importing/exporting, or manufacturing (18 U.S.C. 802(15)), shall not be considered ineligible for any visa under INA 212(a)(2)(A)(ii) based solely upon any such conviction or admission if the acts which are the subject of the conviction or admission occurred while the alien was under the age of eighteen….”

(Emphasis added). However, the ground of inadmissibility still applies to juveniles if the offense related to controlled substance trafficking, import/ export, or manufacturing of a controlled substance rather than mere possession.

Is a waiver available?

Different waivers may be available depending on the offense of which someone has been convicted or has admitted to committing. In order to waive the inadmissibility for the purpose of becoming a permanent resident, section 212(h) of the Immigration and Nationality Act provides that a controlled substance offense that is merely possession of marijuana under 30 grams may be waived if the applicant is:

  • the Spouse, Son or Daughter, or Parent of a United States Citizen or Lawful Permanent Resident; and
  • can demonstrate that refusal of admission would result in “extreme hardship” to the qualifying relative.

Alternatively, possession of 30 grams or less of marijuana may also be waived if:

  • the criminal activity occurred more than 15 years before the application for admission;
  • the person’s admission to the United States as a lawful permanent resident would not be contrary to national welfare, safety, or security; and
  • the applicant can document that he or she has been rehabilitated.

There is no waiver available for possession of more than 30 grams of marijuana.

A broader waiver exists for those seeking admission to the United States only as nonimmigrants. Those permanent resident applicants who are found inadmissible under this ground at their permanent residency interviews and who are unable to meet the waiver requirements above may still be permitted to enter the United States in a nonimmigrant (temporary) status to attend school, work, or visit. Nonimmigrant waivers are much broader and require a discretionary weighing of relevant factors including the risk of harm to society if the person is permitted to enter the United States; the seriousness of the offense; and the nature of the applicant’s reasons for wishing to enter the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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