Marijuana and Restrictions on Immigration
INSIGHTi
Marijuana and Restrictions on Immigration
September 17, 2020
Marijuana is listed as a Schedule I controlled substance under the Controlled Substances Act (CSA), and
has been on Schedule I since the CSA was enacted in 1970 (P.L. 91-513). The Schedule I status of
marijuana means that it is strictly regulated by federal authorities, regardless of state regulations and laws,
and its growth, distribution, and possession (regardless of recreational or medicinal purposes) are
prohibited under federal law aside from activities related to lawful research.
Over the last several decades, states and territories have established a range of laws and policies regarding
marijuana’s medical and recreational use. Most states and territories have deviated from across-the-board
prohibition of marijuana, and now have laws and policies al owing for some cultivation, sale, distribution,
and possession of marijuana, while some states continue to prohibit any marijuana activity aside from
lawful research. These developments have spurred a number of questions regarding potential implications
for federal law enforcement activities as wel as consequences for individuals who may be acting in
accordance with state law but are in violation of federal drug laws and policies.
There are many consequences of marijuana-related activity in the United States. This Insight focuses on
the immigration consequences for noncitizens (referred to as aliens in immigration law).
Immigration Consequences of Marijuana-Related Activity
Drug-related activity can have various types of immigration consequences. Four key consequences for
noncitizens are inadmissibility, deportability, ineligibility for immigration relief, and bar to naturalization.
Due to pending legislation that addresses the legality of marijuana under federal law and immigration
matters related specifical y to marijuana-related activity, this discussion is limited to consequences for
marijuana-related activity.
This Insight uses the term marijuana-related activity rather than marijuana offense because activities that
are not il egal in the state or foreign country where they occurred could stil have immigration
consequences because of the federal prohibition on marijuana and the federal government’s jurisdiction
over immigration enforcement.
Inadmissibility
Aliens may be denied a visa, admission into the United States, or lawful permanent resident (LPR) status
if they have been involved in certain marijuana-related activities (8 U.S.C. §1182(a)), such as
Congressional Research Service
https://crsreports.congress.gov
IN11503
CRS INSIGHT
Prepared for Members and
Committees of Congress
Congressional Research Service
2
a criminal conviction for a federal, state, or foreign marijuana offense;
an admission of commission of a federal, state, or foreign marijuana offense (this can
include admitting marijuana use consistent with states’ legal marijuana programs);
an attempt or conspiracy to commit a federal, state, or foreign marijuana offense;
immigration authorities knowing, or having reason to believe, that the alien has been
involved in marijuana trafficking (working or investing in a state-licensed marijuana
industry may be considered trafficking by immigration officers);
benefitting financial y from marijuana trafficking committed by a spouse or parent
(within last five years); and
addiction to or abuse of marijuana.
Deportability
Aliens who have been lawfully admitted to the United States can be removed if they engage in proscribed
activities that render them deportable (8 U.S.C. §1227). The marijuana-related activity that can be
grounds for deportation include
a criminal conviction for a federal, state, or foreign marijuana offense; this does not apply
if the conviction is for a single offense of possessing 30 grams or less of marijuana for
personal use;
an attempt or conspiracy to commit a federal, state, or foreign marijuana offense;
an aggravated felony conviction (including marijuana trafficking crimes) (8 U.S.C.
§1101(a)(43)); and
addiction to or abuse of marijuana if it occurred anytime since admission to the United
States.
Ineligibility for Immigration Relief
There are several forms of immigration relief for aliens who are inadmissible or deportable. These include
waiver of certain criminal inadmissibility grounds, cancelation of removal, voluntary departure,
withholding of removal, protection under the Convention Against Torture, asylum, Temporary Protected
Status (TPS), and Deferred Action for Childhood Arrivals (DACA). Certain marijuana-related activity
may bar an alien from some of these types of relief. A detailed legal discussion of each of these types of
relief is outside the scope of this Insight, but for more information, see CRS Report R45151, Immigration
Consequences of Criminal Activity.
Bar to Naturalization
In general, LPRs may naturalize as U.S. citizens after residing continuously in the United States for five
years and satisfying other qualifications (8 U.S.C. §1427(a)). To be naturalized, applicants must establish
good moral character (GMC), which includes not being convicted of an aggravated felony, among other
things (8 U.S.C. §1101(f)). The definition of GMC has been further clarified in regulation to include
violating “any law of the United States, any State, or any foreign country relating to a controlled
substance, provided that the violation was not a single offense for simple possession of 30 grams or less
of marijuana” (8 C.F.R. §316.10(b)(2)). In April 2019, U.S. Citizen and Immigration Services issued
guidance clarifying that a marijuana conviction or admission, or involvement in marijuana-related
activities, can bar an individual from establishing GMC, even if the marijuana-related activity did not
violate applicable state or foreign laws. In May 2019, 43 Members of Congress signed a letter to Attorney
Congressional Research Service
3
General Barr and then-Acting DHS Secretary McAleenan expressing concerns about how the new policy
guidance impacts LPRs employed in a state-authorized cannabis industry.
The MORE Act
The Marijuana Opportunity Reinvestment and Expungement Act of 2019 (H.R. 3884; S. 2777; the MORE
Act), would, among other things, remove marijuana from the CSA altogether, thereby ending the federal
criminalization of the cultivation, distribution, and possession of marijuana; it would not affect state and
foreign laws that continue to prohibit this activity. It also would prohibit the denial of any immigration
benefit or protection to aliens who have participated in any marijuana-related activity, including “an
admission, addiction or abuse, an arrest ... or a conviction.” Other bil s in the 116th Congress, such as S.
2021 and H.R. 4390, would remove certain marijuana-related activity as a grounds of inadmissibility and
deportability, and al ow aliens who were deported due to marijuana-related activity to be readmitted.
Author Information
Abigail F. Kolker
Lisa N. Sacco
Analyst in Immigration Policy
Analyst in Illicit Drugs and Crime Policy
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
IN11503 · VERSION 3 · NEW