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The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act is Important for Immigrants and Here’s Why

By immigrationprof

Guest blogger: Victor Adame, law student, University of San Francisco

            In November 2019, the House Judiciary Committee passed H.R. 3884, the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, which “aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by decriminalizing marijuana at the federal level, reassessing marijuana convictions, and investing in local communities.”[1] Among its many provisions, the MORE Act provides that the use or possession of marijuana, or prior conviction for a marijuana offense, will have no adverse impact under the immigration laws.[2] However, the House of Representatives has postponed hearing and voting on the MORE Act until 2021, after the House has decided on another round of pandemic relief (which has also been postponed until after the Presidential Election).[3] In the meantime, despite the fact that recreational and medical use is legalized in many states around the U.S., marijuana is still federally classified as a Schedule I drug and is grounds for inadmissibility for immigration purposes.[4]

            Currently, any connection that an applicant may have to marijuana can be used as a basis for removal and/or denials of visa and citizenship applications, even working in a dispensary within a state that has legalized recreational and/or medical use of marijuana. In April 2019, U.S. Citizenship and Immigration Services issued a Policy Alert stating, “an applicant (for naturalized citizenship) 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.”[5] In other words, despite the fact that many states have legalized medical and recreational use of marijuana, an applicant for citizenship can be denied because they are engaged an activity that is federally regulated and determined to be unlawful. In response, dispensaries have begun displaying signs to warn immigrants, lawful and unlawful, that working in the marijuana industry “may be legally dangerous.”[6]

            This is true for Oswaldo Barrientos, of Colorado, who was denied U.S. citizenship because Barrientos worked “with a state-licensed company that grows marijuana.”[7] Barrientos states that, during an in-person interview regarding his citizenship application, the interviewer focused heavily on his job regardless of the fact that Barrientos “has no criminal history, pays taxes and graduated high school.”[8] Weeks later, Barrientos was “shocked, appalled, sad” when he received a letter from U.S. Citizenship and Immigration Services denying the application.[9]

            If the MORE Act is passed, not only would individuals such as Barrientos be allowed to hold their jobs in the growing industry of marijuana, but those convicted of any crime related to marijuana will no longer be found inadmissible and subject to removal[10]. Under current legislation, convictions related to marijuana, specifically the trafficking or cultivating thereof, are grounds for inadmissibility because such convictions are classified as aggravated felonies.[11] Even low-level marijuana offenses, like simple possession, can trigger the controlled substance deportability ground of the Immigration and Nationality Act.[12]

            However, marijuana use, or possession, should not be grounds for inadmissibility because such crimes are not inherently violent and have been unfairly labeled as such. Many immigrants charged and convicted of marijuana-related crimes serve prison time but are still further punished because, upon completion of their sentences, these individuals are released to Immigration and Customs Enforcement and then subject to removal. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, from 2003 to August 2018, more than 45,000 people were deported nationwide for possession of marijuana.[13] In an interview with Merry Jane, Professor Carrie Rosenbaum of Golden Gate University states that, “There’s definitely an overrepresentation of black and brown people when it comes to deportation. Something like 90% of people arrested criminally and deported [in 2016] were from Mexico and Central American, but less than 50% of the US immigration population is from Mexico and Central America.”[14] However, with the passage of the MORE Act, immigrants will no longer have to worry about being subjected to removal for consuming or engaging in marijuana-related activities, which in turn will hopefully ameliorate this disproportion. The MORE Act is important for immigrants because removing marijuana from the Controlled Substance Act will allow immigrants convicted of marijuana-related crimes to expunge their record. These individuals will feel safe knowing that they will not be subject for removal not denied a visa or citizenship application for engaging in and consuming marijuana because applicants will no longer be found inadmissible. Although the MORE Act will federally decriminalize marijuana, “the violation of local law is something that’s still taken under consideration through federal administration, and that includes immigration.”[15] However, the MORE Act is positive step towards decriminalization of marijuana and bodes well for the future.

 

[1] House Judiciary Passes MORE Act to Decriminalize Marijuana at Federal Level, House Committee on the Judiciary (Nov. 20, 2019), https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=2157.

[2] Ibid.

[3] With MORE Act Vote Delayed, State Level Initiatives In Spotlight, Shanken News Daily (Sept. 22, 2020), https://www.shankennewsdaily.com/index.php/2020/09/22/27060/with-more-act-vote-delayed-state-level-initiatives-in-spotlightWhere COVID-19 relief bill stands after Trump, and what it means for you: FAQs, USA Today (Oct. 7, 2020, 2:33 P.M.), https://www.usatoday.com/story/news/politics/2020/10/07/covid-19-stimulus-faqs-where-stands-and-what-means-you/5908019002.

[4] 21 U.S.C.S. § 802(16) (Deering, LEXIS current through Public Law 116-163, approved October 2, 2020.); 8 U.S.C.S. § 1182(a)(2)(A)(i)(II) (Deering, LEXIS current through Public Law 116-163, approved October 2, 2020.).

[5] U.S. Citizenship and Immigration Services, Controlled Substance-Related Activity and Good Moral Character Determinations, U.S. Department of Homeland Security (Apr. 19, 2019), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20190419-ControlledSubstanceViolations.pdf.

[6] Randy Robinson, Immigration Group Posts Warnings for Non-Citizens Working in Weed, Merry Jane (Aug. 12, 2019), https://merryjane.com/news/immigration-group-posts-warnings-for-non-citizens-working-in-weed.

[7] Kathleen Foody, Legal Marijuana Workers Blast Citizenship Denials Over Work, NewsRadio 1120 KNOX (Apr. 3, 2019, 11:18 P.M.), https://www.radio.com/kmox/articles/immigrants-being-denied-citizenship-because-work-legalized-marijuana-industry.

[8] Ibid.

[9] Ibid.

[10] House Committee on the Judiciary, supra note 1.

[11] Kathy Brady, Zachary Nightingale, and Matt Adams, Practice Advisory: Immigration Risks of Legalized Marijuana, Marijuana and Immigrants, Immigrant Legal Resource Center (Jan. 2018), https://www.ilrc.org/sites/default/files/resources/marijuana_advisory_jan_2018_final.pdf (citing INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B). There is an exception for conviction of giving away a small amount of marijuana.).

[12] Jordan Cunnings, Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences, 62 UCLA L. Rev. 510, 531 (2015), http://www.uclalawreview.org/pdf/62-2-5.pdf.

[13] Ting-Chia Kan, ‘Stay Away From It:’ For Immigrants, Even Legal Marijuana Use Can Result In Deportation, Wisconsin Watch, Post Crescent (Aug. 12, 2019, 6:00 A.M.), https://www.postcrescent.com/story/news/2019/08/12/marijuana-offenses-can-result-deportation-immigrants/1869065001.

[14] Julia Alsop, How Does Marijuana Prohibition Affect the Lives of Immigrants, Merry Jane (May 15, 2017), https://merryjane.com/culture/how-does-marijuana-prohibition-affect-the-lives-of-immigrants.

[15] What is the MORE Act, and How Could It Change Marijuana Policy Forever?, Activism, NORML (Aug. 19, 2019), https://norml.org/blog/2019/08/19/what-is-the-more-act-and-how-could-it-change-marijuana-policy-forever.

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