DHS is apparently citing federal cannabis laws as grounds for denying citizenship. Further, USCIS announced on April 19 that the USCIS Policy Manual now clarifies 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.

As a majority of states legalize marijuana in full or in part, conflicting state and federal law is creating problems for immigrants. Despite state law, the sale, possession, production, and distribution of marijuana or the facilitation of such is illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (21 U.S.C. § 811) (CSA), which does not recognize the difference between medical and recreational use of cannabis. Immigration law is governed by federal statute and regulation and, therefore, is subject to the CSA.

DHS reportedly is questioning non-U.S. citizens at the border about their use of marijuana or investments in the marijuana industry in states (or countries such as Canada) where it is legal. The “wrong” answers, in some cases, have led to entry bans. It now appears the federal government is using a person’s involvement in the legal marijuana industry as a reason to deny naturalization applications. In addition, federal agencies are now coordinating. Historically, the Department of Justice has largely followed a policy of not meddling in state marijuana laws. Meanwhile, DHS is apparently taking a very different approach, as it did in Denver, citing federal cannabis laws as grounds for denying citizenship.

In Colorado, a fully legalized marijuana state, USCIS denied two immigrants citizenship because of a determination that they lacked “good moral character” simply because they work in the marijuana industry. A USCIS spokesperson defended the denials, stating “the agency is required to apply federal law.” There have been calls for formal guidance on this subject. The Mayor of Denver has written to Attorney General William Barr, “Denver believes hardworking and law-abiding immigrants should be allowed to participate in the legal cannabis industry without fear that such participation will disqualify them for lawful residence . . . or prevent the opportunity to obtain permanent citizenship.”

Advocacy groups are warning immigrants about the problem and that “serious consequences can follow including being barred from the United States for life . . . .” An attorney for one of those denied citizenship in Denver believes the federal law regarding marijuana is being used to target immigrants as part of the Administration’s general crackdown on immigration:

“If the executive branch is so intent on upholding federal law, you would see the U.S. attorney’s office prosecuting every marijuana business owner, everybody who worked in the industry . . . . But they’re not. Instead, they’re merely targeting immigrants.”

The USCIS decision to deny citizenship in these cases is being appealed.