The Effect of States' Legalization of Marijuana on Good Moral Character and Eligibility for U.s. Citizenship

• Publication year: 2020

Kaelyn M. Mostafa^*

Abstract: The article sheds light on USCIS's unjust April 2019 Marijuana Policy, which encourages immigration officers to deny U.S. citizenship to immigrants employed in legal marijuana enterprises for lack of good moral character. The article raises several arguments for practitioners to challenge the policy, both as it is applied to individual clients and on its face. However, the piece ultimately concludes that the USCIS Marijuana Policy would likely survive judicial review because it is consistent with the congressional intent behind the Immigration and Nationality Act. Given the futility of the federal courts with respect to the issue, the article argues that public policy demands a congressional amendment to the good moral character statute that would exempt marijuana-related conduct that complies with state law from triggering a statutory bar to good moral character for purposes of naturalization.

Introduction

Over the past decade, the United States has seen a marked increase in the number of states that have legalized or decriminalized marijuana, despite the fact that marijuana remains a controlled substance under federal law.¹ This increase followed policy guidance released by the Obama administration, which effectively authorized states to regulate marijuana as they see fit.² A Department of Justice (DOJ) memorandum promulgated by President Obama's deputy attorney general advised U.S. Attorneys to exercise prosecutorial discretion with regard to businesses engaged in the state-sanctioned production and sale of marijuana, particularly where the state has implemented its own "strong and effective" regulatory system.³

Relying on President Obama's policy guidance, numerous states created thriving economies based on the production and sale of marijuana.⁴ All the while, marijuana has remained a Schedule I controlled substance under the federal Controlled Substances Act (CSA).⁵ This conflict between state and federal law has created uncertainty regarding the immigration consequences of marijuana-related conduct for legal permanent residents seeking U.S. citizenship in states where marijuana is legal.⁶ Most naturalization applicants must prove the following by a preponderance of the evidence: (1) they are a lawfully admitted permanent resident for at least five years (present in the United States for at least half of that time), (2) they have resided continuously within the United States from the date of application up to the time citizenship is granted, and (3) they are a person of "good moral character" (GMC).⁷ This article focuses on the effect of states' legalization of marijuana on the latter requirement within the narrow context of naturalization.

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Congress has provided little guidance about what it means for a person to possess GMC.⁸ However, Congress clearly stated that an applicant who has violated the CSA within five years of his application date cannot prove the requisite GMC for naturalization.⁹ On April 19, 2019, United States Citizenship and Immigration Services (USCIS) issued a Policy Alert (hereinafter "the USCIS Marijuana Policy") clarifying that "violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law."¹⁰ If naturalization applicants admit to the essential elements of a CSA violation, they can be found to lack GMC even if they were never "formally charged, indicted, arrested, or convicted."¹¹

Before President Trump took office, USCIS only enforced immigration penalties related to legal marijuana in certain regions.¹² Since the USCIS Marijuana Policy was issued, however, a number of immigrants employed in the legal marijuana industry have been denied U.S. citizenship for lack of GMC after admitting to immigration officers the essential elements of a CSA violation.¹³ In Colorado, a state where marijuana has been legal for almost a decade, immigrants who are otherwise eligible for citizenship have been denied naturalization for lack of GMC based solely on their employment in the legal marijuana industry.¹⁴ USCIS denial notices are not publicly accessible, but the following is language from a denial notice issued to a permanent resident who worked at a dispensary in Colorado:

The record reflects that during the statutory period of April 3, 2013, to the present, you admit to having committed an unlawful act. In a sworn statement, the Immigration Services Officer confirmed that you worked at a marijuana dispensary . . . . The Officer asked if you were involved in the exchange of money for marijuana while employed at the dispensary. You replied, "correct." The Officer also asked ifyou knew that under 21 U.S.C. Section 812, marijuana is listed as a controlled substance. You replied, "I was aware." You were asked if you knowingly and intentionally delivered or dispensed marijuana. You replied that you had knowingly and intentionally dispensed and delivered marijuana while employed at the marijuana dispensary . . . . Because of your admission regarding a controlled substance violation during the statutory period you are unable to demonstrate that you are a person of good moral character; therefore, you are ineligible for naturalization at this time.¹⁵

USCIS's policy of inducing noncitizen employees of the legal marijuana industry to admit a CSA violation has far-reaching impacts on an immigrant applying for naturalization. An applicant who admits to the essential elements of a CSA violation is not only deemed ineligible for U.S. citizenship but also becomes inadmissible under the Immigration and Nationality Act (INA).¹⁶ After a legal permanent resident is deemed inadmissible, they can be barred from reentering the country after traveling abroad.¹⁷ If they manage to reenter the United States without issue, they become deportable under the INA for having entered the country when they were inadmissible.¹⁸

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Immigration lawyers and government officials have spearheaded the movement to change the Trump administration's immigration policies and protect immigrants from suffering adverse immigration consequences because of their employment in the legal marijuana industry.¹⁹ In the meantime, however, USCIS's current policy with regard to legal marijuana and GMC stands to jeopardize the status of immigrants employed lawfully within state-sanctioned marijuana enterprises.

Overview

This article analyzes the under-acknowledged nexus between federal naturalization law and state marijuana law as it pertains to immigrants' eligibility for U.S. citizenship. Marijuana-related conduct impacts numerous areas of immigration practice, but this article is not intended to be an overview of the broad range of issues involving marijuana and immigration. Rather, the article narrowly analyzes how states' legalization of marijuana triggers a statutory bar to immigrants' establishment of the requisite GMC for naturalization.²⁰

The article begins with a brief overview of the GMC requirement for naturalization, including a discussion of both the statutory and discretionary prongs of GMC analysis undertaken by USCIS officers to adjudicate naturalization petitions.²¹ The article then explores the federal courts' limited powers with respect to immigration policy and concludes that the judiciary is virtually powerless to change the USCIS Marijuana Policy because it is consistent with the congressional intent behind the INA.²² The article then explains how marijuana-related conduct, despite its compliance with state law, violates the CSA and triggers a statutory bar to GMC that disqualifies immigrants from U.S. citizenship.

The article frankly acknowledges that, given the limited power of federal courts with respect to naturalization and the current state of the law, practitioners will not prevail in challenging the USCIS Marijuana Policy that precludes clients employed in legal marijuana enterprises from establishing the requisite GMC for naturalization. However, this article lays out several arguments that practitioners should raise to challenge the USCIS Marijuana Policy, both as it is applied to individual clients and on its face. The article posits that, when possible, practitioners should advise clients not to apply for citizenship until at least five years have passed since their involvement in marijuana-related activities, at which time they will no longer be statutorily barred from establishing GMC.

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Because the law grants USCIS officers the unfettered discretion to make GMC determinations, this article posits that the only way to remove states' legalization of marijuana as an obstacle to U.S. citizenship is for Congress to amend the INA to exempt legal marijuana-related conduct from triggering a statutory bar to GMC. The final part of this article argues that public policy, as well as principles of justice and fairness, demand a congressional amendment to the INA to that effect. The same policy considerations that support a congressional amendment to the INA should be raised by practitioners to bolster their arguments against the USCIS Marijuana Policy.

Overview of GMC as a Requirement for Naturalization

The GMC requirement for naturalization is set forth in 8 U.S.C. § 1427.²³ The statute does not affirmatively define GMC, but instructs that applicants possess it during the five years preceding their application date.²⁴ The statute that defines GMC, 8 U.S.C. § 1101(f) (the "GMC statute"), establishes two prongs of GMC analysis: statutory and discretionary.²⁵ USCIS first analyzes naturalization applicants' GMC under the statutory prong, which provides that applicants cannot establish GMC if they meet any of the conditions listed in the statute.²⁶ One such condition explicitly bars immigrants who have either been convicted of or admitted to violating the CSA from establishing GMC.²⁷

The list of statutory bars to GMC is...