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The budding immigration consequences of marijuana possession

On Behalf of | Apr 15, 2024 | Immigration Law

Marijuana possession, while considered to be innocuous by many, can present risks to permanent residents and those seeking admission to the United States. While many states have decriminalized or legalized the possession of marijuana, it remains a federal offense to possess marijuana and it continues to have immigration consequences. Both individuals seeking to become permanent residents of the United States and those who are already permanent residents need to be wary of marijuana possession.

Applicants for permanent resident status will be deemed inadmissible if they have been convicted of marijuana possession, regardless of the amount of marijuana. It should be noted that individuals charged with marijuana possession in the United States are often offered diversion programs or a deferred dismissal that requires them to complete a period of probation upon which the charge will be dismissed. Such a dismissal where probation was completed would still be a conviction for immigration purposes if one pleaded guilty or the judge made a finding of guilt.

Even if one is not convicted, inadmissibility could arise if the applicant admits to possessing marijuana. Applicants for permanent resident status have the burden to prove their admissibility and could be asked questions relating to marijuana possession by the USCIS officer or consular official during their interview. If an applicant admits to possessing marijuana, he or she could be deemed inadmissible. It is more likely that questions related to marijuana possession are asked when applicants have a prior charge or arrest history related to marijuana, even if they were not convicted. For instance, a doctor conducting the visa medical exam could also ask applicants if they have used marijuana, and an admission could render an applicant inadmissible.

Lawful permanent residents could also face deportability grounds from marijuana possession. A conviction for marijuana possession, other than a single offense for possessing 30 grams or less of marijuana for personal use, will render one deportable from the United States. Unlike the ground of inadmissibility discussed above, one must be convicted of, and not just admit to, marijuana possession to be found deportable. A conviction for possessing more than 30 grams of marijuana, or two or more marijuana possession convictions, regardless of the amount, makes one deportable. Legal permanent residents convicted of marijuana possession may be eligible for various forms of relief depending on when the crime(s) occurred and the specifics of their case.

Permanent residents travelling abroad could also be found inadmissible if they have a history of marijuana possession. While legal permanent residents returning from travel abroad are generally not considered to be making an admission to the United States, they will be considered as such if they are subject to a criminal ground of inadmissibility. If a legal permanent resident has a marijuana conviction or admits to having possessed marijuana to a CBP officer, he or she could be deemed inadmissible and placed into removal proceedings. It is advisable that permanent residents with a history of marijuana possession avoid foreign travel until they become a U.S. citizen.

A permanent resident or applicant for permanent residency who is deemed inadmissible based on a single incident of possessing 30 grams or less of marijuana could be eligible for a waiver, called a “212(h)” waiver. To qualify for the 212(h) waiver for possessing 30 grams or less of marijuana, an applicant must demonstrate one of the following: that that they have a U.S. citizen or lawful permanent resident spouse, son, or daughter who would suffer extreme hardship of if they were removed; the incident that triggered inadmissibility occurred at least 15 years ago, and the individual has rehabilitated; or they are a VAWA (Violence Against Women Act) self-petitioner, and they can demonstrate that the waiver should be granted as a matter of discretion.