Noncitizens must be very careful about Minnesota Cannabis legalization
Admitting marijuana use can have devastating immigration consequences.
Well, my fears became true: Minnesota legalized cannabis before I was legalized.
All joking aside, Minnesota passed a law during the 2023 legislative session legalizing cannabis use for adults. Minnesota is the 23rd state to do so.
As I wrote this past February, I feared that lawmakers were not putting safeguards in the new law to protect noncitizens (not just undocumented Minnesotans). In short, cannabis continues to be considered a Schedule 1 drug under federal law. The possession, giving of, selling, cultivating, importing or exporting of marijuana continue to be federal offenses. Such designation impacts the rights of immigrants who are not U.S. citizens.
During my years working in immigration law, and having conversations with friends, since marijuana is now legal in their state, noncitizens believe that they can use marijuana as well. What folks do not realize is that noncitizens cannot freely engage within the new confines of the state cannabis law without potentially devastating consequences.
For example: If you are undocumented in Minnesota and your U.S. spouse sponsors you for permanent residency (aka a green card), you generally have to return to your home country to get approved. Once outside the U.S., you take a required medical exam. Maybe the green card process got you stressed out and you smoked a little — if you tell the physician, the consular officer interviewing you and reviewing your documentation could deny your green card. And getting back in the U.S. will be a mess.
And, federal immigration law makes no exceptions for marijuana that has been medically prescribed.
Non-U.S. citizens charged with possession of marijuana often face immigration consequences, sometimes as devastating as deportation.
The Minnesota cannabis law will expunge some criminal records, but when it comes to immigration law, expungements do not always result in desired outcomes.
More sinister, you do not need to be charged with possession of marijuana — a simple admission could bring about consequences for a noncitizen. For example, if you are applying for U.S. citizenship, you must reveal your source of income or work history for a number of years. Say, you worked at a dispensary or owned a weed farm or even merely admitted to having used (federally) illegal substances, then you may be denied citizenship or other immigration rights.
The federal government has provided warnings about non-U.S. citizens involved in the cannabis industry. From a 2019 advisory:
- 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.
- An applicant who is involved in certain marijuana related activities may lack Good Moral Character if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.
The risks are now real because cannabis is legal in Minnesota and immigration agents can ask Minnesota residents for their conduct around marijuana.
Minnesota is a border state, and I have run into Customs and Border Patrol agents in Grand Marais. We have Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services offices. The Immigrant Legal Resources Center reported in 2021 that ICE/USCIS/CBP agents in Washington —where marijuana is legal — aggressively questioned noncitizens about possession of marijuana in attempts to find them inadmissible (aka potentially deportable).
This is the advice ILRC gives noncitizens:
- Stay away from marijuana until you are a U.S. citizen.
- If you truly need medical marijuana, get a legal consult.
- Do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc. Remove any text or photos relating to marijuana from your social media and phone.
- If you have used marijuana, or worked in the industry, get a legal consult before leaving the United States or applying for naturalization or immigration status.
- Never discuss conduct involving marijuana with immigration, border, consular or law enforcement authorities — unless your immigration attorney has advised that this is safe.
Because the Legislature did not put safeguards for immigrants in its new law, and we are yet to see how the Minnesota Office of Cannabis Management handles this issue, we as a community must put more efforts into educating Minnesotans who are not yet citizens about how to engage or not engage in cannabis and the risks for their immigration status.