“High like Planes, or Low like Inadmissibility:” How Racialized Weed Law Intersects with Immigration

By: Khatia Mikadze

Consumption of medical and recreational marijuana has grown so much during the last decade that there has been an unprecedented surge in jobs in the marijuana industry (“weed industry”). However, such growth has intersected with immigration law in various ways. Although use and sale of recreational marijuana is legal in 10 states, decriminalized in 14 more, and more than 30 states allow a variety of marijuana-based products for medical purposes, marijuana is still classified as an illegal substance under federal law, including its use, possession, sale, or manufacturing.[1] This means that federal law directly conflicts with state laws, creating various immigration related concerns for non-citizens. More specifically, because immigration matters are adjudicated on a federal level, marijuana related activities, even when legitimate under state laws, can have severe immigration consequences for non-citizens. Under the Immigration and Nationality Act (INA) § 212(a)(2)(C)(i) where the grounds of inadmissibility related to controlled substances are outlined, the definition of “trafficking” is very broad.[2] Under this section, inadmissibility grounds for a non-citizen can be triggered even when an immigration or consular officer merely has “reason to believe” that the non-citizen has been “a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking [of marijuana] . . . or endeavored to do so.”[3] Low-level marijuana related offenses, like simple possession, can also implicate the INA controlled substance deportability ground for immigrants. INA §  237(a)(2)(B)(i) makes a noncitizen who “at any time after admission has been convicted of a violation of . . .  any law or regulation relating to a controlled substance” deportable.[4] While INA allows some exceptions and waivers for personal marijuana use (like less than 30 grams of marijuana), immigrants who are charged with manufacturing, selling or distributing of marijuana face grave consequences because INA considers these charges as an “aggravated felony” under federal immigration law, triggering deportation grounds.[5]

Since criminalization of drugs, especially marijuana has racialized roots in U.S. history, it is not surprising that these discriminatory marijuana-related offenses are also entrenched in immigration law, targeting vulnerable immigrants and communities of color.[6] In 2018, the U.S. Customs and Border Protection (CBP) announced that a “Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”[7] Similarly, U.S. Citizenship and Immigration Services (USCIS) has declared that “certain conduct involving marijuana . . . continues to constitute a conditional bar to [establishing good moral character] for naturalization eligibility, even where such activity is not a criminal offense under state law.”[8] In an emailed statement, USCIS spokeswoman Jessica Collins said the agency is “required to adjudicate cases based on federal law; individuals who commit federal controlled substance violations face potential immigration consequences under the Immigration and Nationality Act (INA), which applies to all foreign nationals regardless of the state or jurisdiction in which they reside.”[9] The Supreme Court has held that Congress’ authority under the Commerce Clause empowers it to prohibit drug distribution and possession, even if the prohibited activities are not also illegal under state law.”[10] In Carachuri-Rosendo v. Holder, the Supreme Court discussed the intersection of drug laws and immigration laws and held that a second or subsequent state possession offense is not an aggravated felony as a “felony punishable” under federal law when the state conviction was not based on the fact of a prior conviction, as would be required for a federal felony recidivist possession conviction.[11]Thus, although the Supreme Court somewhat expanded protections for non-citizens in Carachuri-Rosendo, marijuana related offenses still present high deportation risks for immigrants.

Working in the weed industry has already prevented a handful of immigrants from obtaining U.S. citizenship. Immigration advocates state that they have seen immigrants denied citizenship based on past or ongoing work in weed-related jobs, but it is not clear how many cases exist just yet.[12] What is clear is that besides immigration concerns, criminalization of marijuana has led to other issues in the marijuana industry itself, such as labor exploitation and human trafficking of low-wage immigrant workers. For instance, the COVID-19 Pandemic has pushed out a lot of low-wage service work into the weed industry, subjecting low-wage immigrant workers to labor trafficking, worker right discrimination and abuses.[13] This past year, there have been major indoor marijuana growing takedowns in Washington, New Mexico, and California, involving Chinese immigrants.[14] Some of these immigrants previously had full-time service jobs and moved from the North East to the West Coast to work in the weed industry and most of them who were arrested as a result of these takedowns, were released without charge because they were determined to be victims of human trafficking.[15] Many of these low-wage workers are being recruited through job agencies and labor brokers—part of what prosecutors and human rights attorneys describe as an informal, cash-based economy that enables exploitation and abuse.[16]

War on drugs, racism, and anti-immigrant rhetoric in the U.S. has directly and indirectly affected immigrants and their livelihoods. Former President Trump’s rhetoric that a border wall would keep drugs away from the country and help us avoid the opioid epidemic further perpetuated this rhetoric. However, this glaring conflict between state and federal law has real and severe consequences for vulnerable immigrants. To address this issue, there have been a few bills introduced in Congress that would help alleviate the conflict between state and federal laws by eliminating federal penalties for those complying with state marijuana laws and removing marijuana from the list of controlled substances.[17] The Secure and Fair Enforcement (SAFE) Banking Act bill would protect banks that work with the legal marijuana industry, passed in the House of Representatives.[18] If passed, this bill would be the first step, but would do nothing to protect workers involved in the legal marijuana industry. Just this year, 2021, New York lawmakers reached an agreement to legalize cannabis for adults 21 and older, a move that officials hope will help end years of racially disproportionate policing[19] that saw Black and Latinx people arrested on low-level marijuana charges far more frequently than white people.[20] While it is laudable that individual states legalize marijuana, there is still a need to legalize marijuana on a federal level because it is the only way to resolve an unfair conflict between immigration and drug laws in the U.S.

For community resources and Know Your Rights trainings, please visit Immigrant Legal Resource Center (ILRC): https://www.ilrc.org/noncitizens-cannabis-warnings

“I fly like paper, get high like planes, ff you catch me at the border, I got visas in my name”

-MIA


[1] See generally Jeremy Berke et al., All the States Where Marijuana is Legal-and 5 More That Voted to Legalize it in November, BusinessInsider (Feb. 22, 2021), https://www.businessinsider.com/legal-marijuana-states-2018-1

[2] Immigration and Nationality Act, Pub. L. No. 82-414  § 212(a)(2)(C)(i) (1952) (outlining grounds of inadmissibility related to trafficking of controlled substances).

[3] See Charles A. Weingard, III, Fundamentals of Immigration Law, Dep’t of Justice (2016), https://www.justice.gov/sites/default/files/pages/attachments/2016/03/03/fundamentals_of_immigration_law_-_feb_2016.pdf

[4] INA § 237(a)(2)(B)(i), 8 U.S.C. §1227(a)(2)(B)(i) (2006).

[5] See INA § 237(a)(2)(B)(i), 8 U.S.C. §1227(a)(2)(B)(i) (2006) (laying out the personal use exception to the controlled substance deportability ground); INA § 212(h), 8 U.S.C. § 1182(h) (2006) (making a 212(h) waiver of inadmissibility available for one controlled substance offense related to simple possession of 30 grams or less of marijuana); see also 8 U.S.C. § 1101(a)(43) (B) (illicit trafficking in a controlled substance) and a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B); see generally Immigration Consequences Of Common Virginia Offenses Section IV – Controlled Substance Offenses, Capital Area Immigrants’ Rights (CAIR) Coalition (last visited March 26, 2021), https://www.caircoalition.org/sites/default/files/20160316%20-%20VA%20Crimes%20Chart%20-%20Controlled%20Substances.pdf

[6] See Jordan Cunnings, Note, Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences, 62 UCLA L. Rev. 510 (2015),  https://www.uclalawreview.org/pdf/62-2-5.pdf

[7] See CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border, U.S. Customs & Border Protection (CBP) (September 21, 2018), https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border

[8] See Policy Alert: Controlled Substance-Related Activity and Good Moral Character Determinations, U.S. Citizenship & Immigration Services (USCIS) (Apr. 19, 2019), https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf

[9] Colby Itkowitz, Trump Administration Says Immigrants Working In Legal Marijuana Industry Lack ‘moral Character’ For Citizenship, Washington Post (Apr. 20, 2019), https://www.washingtonpost.com/politics/2019/04/20/trump-administration-immigrants-working-legal-marijuana-industry-lack-moral-character-citizenship/ 

[10] Kathleen Foody, Some Legal Immigrants in Marijuana Jobs Denied Citizenship, APNews (Apr. 4, 2019), https://apnews.com/article/82b3dabdd0bf48d1a039ab1e4a73bf4f 

[11] See Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S. Ct. 2577 (2010).

[12] See Kathleen Foody, Some Legal Immigrants in Marijuana Jobs Denied Citizenship, APNews (Apr. 4, 2019), https://apnews.com/article/82b3dabdd0bf48d1a039ab1e4a73bf4f 

[13] See Ed Williams & Wufei Yu, Covid Is Pushing Thousands Of Chinese Immigrant Workers Into The Marijuana Business—sometimes Leading to Exploitation and Labor Trafficking, NMPoliticalReport (Dec. 23, 2020), https://nmpoliticalreport.com/2020/12/23/covid-is-pushing-thousands-of-chinese-immigrant-workers-into-the-marijuana-business-sometimes-leading-to-exploitation-and-labor-trafficking/

[14] See id; see also Tom Banse, The Pot Farmers Next Door: Chinese Immigrants Drawn To Illicit Indoor Grows, NW News Network (June 21, 2018), https://www.nwnewsnetwork.org/post/pot-farmers-next-door-chinese-immigrants-drawn-illicit-indoor-grows 

[15] Id.

[16] See Ed Williams & Wufei Yu, Covid Is Pushing Thousands Of Chinese Immigrant Workers Into The Marijuana Business—sometimes Leading to Exploitation and Labor Trafficking, NMPoliticalReport (Dec. 23, 2020), https://nmpoliticalreport.com/2020/12/23/covid-is-pushing-thousands-of-chinese-immigrant-workers-into-the-marijuana-business-sometimes-leading-to-exploitation-and-labor-trafficking/

[17] See Schumer To Reintroduce Federal Cannabis Reform Bill, Marijuana Business Daily (May 9, 2019), https://mjbizdaily.com/chuck-schumer-reintroduce-federal-marijuana-reform-bill/

[18] See Victor Reklaitis, House Passes Cannabis-banking Bill, But Getting Senate’s Ok Still Looks Tricky, Market Watch (Sep. 28, 2019), https://www.marketwatch.com/story/house-expected-to-pass-cannabis-banking-bill-but-getting-senates-ok-still-looks-tricky-2019-09-24

[19] See Benjamin Mueller et al., Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic, NY Times (May 13, 2018), https://www.nytimes.com/2018/05/13/nyregion/marijuana-arrests-nyc-race.html

[20]See Matt Stieb, New York Lawmakers Reach a Deal on Legal Weed, NY Magazine (Mar. 25, 2021), https://www.nytimes.com/2021/03/25/nyregion/ny-legalize-marijuana.html