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Weed and Worry — The Immigration Consequences of Engaging in the Cannabis Trade
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392117-article-weed-and-worry-%E2%80%94-the-immigration-consequences-of-engaging-in-the-cannabis-trade-by-angelo-paparelli#bio”>
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Angelo Paparelli
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<p>
The legal cannabis business is spreading like weeds. As
<a
href=”https://www.thrillist.com/vice/30-places-where-weed-is-legal-cities-and-countries-with-decriminalized-marijuana”
>
several states and foreign countries
</a>
have enacted laws decriminalizing or legalizing marijuana for medicinal or
recreational use, a fresh rush of reefer madness has overtaken the business
world. Investments in the cannabis industry are now available as <a href=”https://thcxetf.com/”>ETFs (Exchange Traded Funds)</a>, and
<a
href=”https://www.cnbc.com/2019/07/30/us-based-cannabis-company-could-be-active-in-as-little-as-6-months.html”
>
marijuana startups are proliferating
</a>
at every step along the supply chain.
</p>
<p>
Not to be a downer, but this blogger worries that many imbibers of high and
heady times may not realize that engaging in, and even facilitating, the
marijuana trade carries risks – not the least of which are the chockablock
provisions of the Immigration and Nationality Act (INA) that portend bad
trips aplenty.
</p>
<p>
Should you be worried about legal marijuana’s adverse consequences under
federal immigration law?
</p>
<p>
Yes, of course, if you are a noncitizen:
</p>
<ul>
<li>
residing anywhere in the U.S. who uses, shares (whether you do or
<a
href=”https://www.lyrics.com/lyric/27224245/Fraternity+of+Man/Don%27t+Bogart+Me+%28AKA+Don%27t+Bogart+That+Joint%29″
>
don’t Bogart that joint
</a>
), or sells marijuana in any form, whether psychoactive THC or only
non-psychoactive CBD
</li>
<li>
residing abroad who used Mary Jane before it was legal in your home
country, and you want to visit the U.S., work here, or apply for a
green card
</li>
<li>
residing abroad hoping to get an E-2 or EB-5 investor visa who wants to
invest in and start a business even only remotely involved in the weed
trade (other than agricultural hemp [per new § 297A Agricultural
Marketing Act of 1946, 7 U.S.C. 1621 et seq., Note: 7 U.S.C. 1639o,
enacted through § 10113 of the
<a
href=”https://www.congress.gov/bill/115th-congress/house-bill/2/text”
>
2018 Farm Bill
</a>
])
</li>
<li>
residing anywhere who invests in cannabis businesses through purchases
of mutual funds or individual stocks (whether publicly listed or
privately sold)
</li>
<li>
married to a U.S. citizen who is petitioning for your “green card”
status (lawful permanent residency) while owning a duplex (where you
live together on one floor and s/he sells legal cannabis as a
dispensary operator on the other)
</li>
<li>
<a
href=”https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/26/1/ethical-issues-representing-clients-the-cannabis-business-one-toke-over-line/”
>
practicing law in the U.S.
</a>
on a green card or work visa whose clients want to engage in business
as growers/producers, distributors/sellers, manufacturers/processors of
legal cannabis
</li>
</ul>
<p>
Yes, also be worried if you engage in business in the U.S. (whether or not
in states where weed is legal for medical or recreational use), your
business employs noncitizens, and, say, you:
</p>
<ul>
<li>
are a property owner who rents land to a cannabis farmer or retail
space to a marijuana dispensary
</li>
<li>
are a financial services company and your top employee, a U.S. green
card holder, recommends investments in cannabis-industry businesses or
approves a loan to start up or expand such a firm
</li>
<li>
are a cannabis grower or dispensary operator with a separate
wholly-owned IT services subsidiary that manages your web site
promoting marijuana sales
</li>
<li>
want to employ a research scientist to investigate potential products
or services, or delivery systems, involving any form of cannabis
(except agricultural hemp).
</li>
</ul>
<p>
Why not just blow off your worries?
</p>
<p>
These fearsome consequences are not necessarily certain or inevitable, but
the underlying fear is reasonable because cannabis (
<a
href=”https://www.marijuanamoment.net/federal-court-orders-dea-to-promptly-consider-marijuana-rescheduling-or-else/”
>
at least for now
</a>
) remains
<a href=”https://www.dea.gov/drug-scheduling”>
a Schedule I Controlled Substance
</a>
under federal law,
<a
href=”https://www.cnn.com/2016/08/11/health/dea-marijuana-schedule-l/index.html”
>
even if only used for medical purposes
</a>
. Thus,
<a
href=”https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement”
>
the Justice Department
</a>
cares not a whit that weed is legal in California, Canada and countless
other jurisdictions. Just ask
<a href=”https://www.justice.gov/eoir/page/file/1171626/download”>
Jesus Gabriel Navarro Guadarrama
</a>
. On June 16, 2019 the Board of Immigration Appeals (BIA [an arm of the
DOJ]) determined that his two convictions under Florida law for possession
of 20 grams of marijuana warranted deportation (even though a single
conviction for possessing 30 grams or less for personal use might have
saved him from banishment).
</p>
<p>
Simply put, even though many states (foreign and domestic) see things
otherwise, the
<a href=”https://nortontooby.com/node/17167#booktext”>
Feds continue to enforce marijuana penalties under the immigration laws
</a>
, be it MJ use, possession, or “trafficking.” Indeed, under INA §
212(a)(2)(C)(i) the trafficking bar is so broad that it can trigger the
deportation or refusal of admission of any noncitizen whom an immigration
or consular officer merely has “reason to believe” has been “a knowing
aider, abettor, assister, conspirator, or colluder with others in the
illicit trafficking [of marijuana] . . . or endeavored to do so.”
</p>
<p>
Immigration precedent decisions of the BIA, such as
<a
href=”https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3181.pdf”
>
Matter of Davis
</a>
, have defined illicit trafficking expansively:
</p>
<p>
<em>Black’s Law Dictionary </em>
defines “traffic” as “[commerce]; trade; sale or exchange of merchandise,
bills, money, and the like. The passing of goods or commodities from one
person to another for an equivalent in goods or money.” Black’s Law
Dictionary, 1340 (5th ed. 1979). “Trafficking” is in turn defined as:
“Trading or dealing in certain goods and commonly used in connection with
illegal narcotic sales.”<em> Id. </em>Essential to the term in this sense
is its business or merchant nature, the trading or dealing of goods,
although only a minimal degree of involvement may be sufficient under the
precedents of this Board to characterize an activity as “trafficking” or a
participant as a “trafficker.” . . .
</p>
<p>
“Illicit” is defined as “not permitted or allowed; prohibited; unlawful; as
an illicit trade.” <em>Black’s Law Dictionary</em>, supra, at 673. Giving
effect to this plain meaning, the use of “illicit” in . . . the Immigration
and Nationality Act simply refers to the illegality of the trafficking
activity. (Emphasis added.)
</p>
<p>
What this means in the real world is that visas for working, visiting,
studying, or immigrating here, may not be issued to persons using or
possessing cannabis (see Vol. 9 of the State Department’s <em>Foreign Affairs Manual</em> [at
<a
href=”https://fam.state.gov/searchapps/viewer?format=html&query=marijuana&links=MARIJUANA&url=/FAM/09FAM/09FAM030204.html#M302_4_2_B_2″
>
9 FAM 302.4-2(B)(1) and (2)
</a>
]. It also means that merely “proliferating” the cannabis trade is <em>verboten</em>, and that even lawful permanent residents and the U.S.
businesses that employ them can readily run afoul of the INA’s cannabis
prohibitions and penalties.
</p>
<p>
How so? Consider these recent agency actions.
</p>
<ul>
<li>
<a
href=”https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border”
>
U.S. Customs and Border Protection
</a>
(CBP) has announced, for example, 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.” (Emphasis added.)
</li>
<li>
Similarly,
<a
href=”https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf”
>
U.S. Citizenship and Immigration Services
</a>
(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.”
</li>
</ul>
<p>
According to USCIS, conduct making citizenship a pipe dream (for at least
five years, possibly longer) extend to a variety of federal offenses which
”may include, but [are] not limited to, possession, manufacture or
production, or distribution or dispensing of marijuana . . . For example,
possession of marijuana for recreational or medical purposes or employment
in the marijuana industry may constitute conduct that violates federal
controlled substance laws.” (Emphasis added; footnotes omitted.)
</p>
<p>
USCIS adds that a cannabis-related conviction is not required. Merely
making a binding admission to having participated, partaken or proliferated
a forbidden act associated with the drug is enough to cause the loss of
eligibility to naturalize. Worse yet, the agency adds that “even if an
applicant [for naturalization] does not have a conviction or make a valid
admission to a marijuana-related offense, he or she may be unable to meet
the burden of proof to show that he or she has not committed such an
offense.”
</p>
<p>
U.S. immigration laws make no distinction between psychoactive THC,
medicinal CBD, or hemp, as this excerpt from the State Department’s <em>Foreign Affairs Manual</em>, 9 FAM 302.4-2(B)(1) and (2) (although
arguably the species known as <a href=”https://en.wikipedia.org/wiki/Cannabis_indica”>indica</a> may be
distinguishable from <a href=”https://en.wikipedia.org/wiki/Cannabis_sativa”>sativa)</a>:
</p>
<p>
For the purpose of these Notes, the term marijuana includes any of the
various parts or products of the plant Cannabis Sativa L., such as bhang,
ganga, charras, Indian hemp, dagga, hashish, and cannabis resin.
</p>
<p>
Just say no versus just say maybe (until Congress, the Administration or
the Courts act)
</p>
<p>
These agency pronouncements arise against a flurry of legislative,
executive and judicial actions which offer hope that the problem of
conflicting MJ legality might eventually be ameliorated in one way or
another:
</p>
<ul>
<li>
<a href=”https://www.congress.gov/bill/116th-congress/house-bill/1595″>
H. R. 1595
</a>
– The Secure And Fair Enforcement Banking Act, which
<a
href=”https://www.blunttruthlaw.com/2019/09/safe-act-passes-in-the-house-but/”
>
passed in the House
</a>
, would prohibit federal banking regulators from penalizing banks that
finance legitimate marijuana-related businesses, while its counterpart
in the Senate,
<a href=”https://www.congress.gov/bill/116th-congress/senate-bill/1200″>
S. 1200
</a>
, The SAFE Banking Act, awaits a vote.
</li>
<li>
<a href=”https://www.congress.gov/bill/116th-congress/house-bill/4390″>
H. R. 4390
</a>
and
<a href=”https://www.congress.gov/bill/116th-congress/senate-bill/2021″>
S. 2021
</a>
The Removing Marijuana from Deportable Offenses Act, not yet up for a
vote, which, though laudable, would only provide that “any offenses
involving the use, possession, or distribution of marijuana shall not
be considered as grounds of inadmissibility.” In other words, these
bills would not in express terms retroactively reverse the consequences
for persons already ordered deported from the U.S. like the hapless
Jesus Gabriel Navarro Guadarrama and innumerable others.
</li>
<li>
The
<a
href=”https://www.federalregister.gov/documents/2019/08/29/2019-18714/international-drug-scheduling-convention-on-psychotropic-substances-single-convention-on-narcotic”
>
Food and Drug Administration recently reopened the comment period
</a>
on the potential rescheduling of marijuana so that it might no longer
be classed as a Schedule I drug under international treaties.
</li>
<li>
The
<a
href=”https://www.dea.gov/press-releases/2019/08/26/dea-announces-steps-necessary-improve-access-marijuana-research”
>
Drug Enforcement Administration announced in August that it is
accelerating its review of applications by marijuana suppliers
</a>
to provide the drug for research purposes (noting that in the last two
years the agency has increased the number of registered researchers “by
more than 40 percent from 384 in January 2017 to 542 in January 2019.”
The DEA added, however, that “[before] making decisions on these
pending applications, DEA intends to propose new regulations that will
govern the marijuana growers program for scientific and medical
research . . . [and] help ensure DEA can evaluate the applications
under the applicable legal standard and conform the program to relevant
laws.”
</li>
<li>
Meantime, the
<a
href=”http://www.ca2.uscourts.gov/decisions/isysquery/fe0ecd78-8474-4c7f-b1a9-a18b441f64f5/2/doc/18-859_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fe0ecd78-8474-4c7f-b1a9-a18b441f64f5/2/hilite/”
>
Second Circuit Court of Appeals
</a>
on May 30 directed the DEA to reconsider its classification of cannabis
as a Schedule I drug.
</li>
</ul>
<p>
* * *
</p>
<p>
Inevitably, in this blogger’s view, the problem of adverse immigration
consequences over cannabis will at some point blow away. Until federal
immigration authorities stop throwing the baby out with the bong water,
however, countless noncitizens and the U.S. families and businesses who
interact with them will fear the prospect of uncertain and uneven
enforcement of America’s outdated immigration laws.
</p>
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<p>This post originally appeared on <a href=”https://www.nationofimmigrators.com/deportation-removal/weed-and-worry-the-immigration-consequences-of-engaging-in-the-cannabis-trade/” target=”_blank”>Nation of Immigrators</a>. Reprinted with permission.</p>
</span>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
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<b><a href=”” target=”_blank”><a href=”http://www.seyfarth.com/” target=”_blank”>Angelo Paparelli</a></a></b> is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.
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