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Biden Decriminalizes Thousands of Federal Marijuana Convictions. So What?

On Behalf of | Oct 25, 2022 | Immigration

On March 29, 1992, then candidate Bill Clinton admitted that he had tried smoking marijuana when he was in his 20’s while studying at the University of Oxford.  “I’ve never broken a state law,” he said, “But when I was in England, I experimented with marijuana a time or two, and I didn’t like it. I didn’t inhale it, and never tried it again.”  (Did anyone really believe him?)

If you are a foreign national, and you wish to immigrate to the United States permanently, you need to show that you are not “inadmissible” to the United States.  There are many things that could make one inadmissible to the United States, e.g., if you’re a terrorist, if you’re likely to become a public charge, if you’re a prostitute, or even if you’re a “drunkard”.  Certain criminal convictions can also make one inadmissible to the United States, including convictions for marijuana use.[1]

If you are a foreign national, and you’ve already immigrated to the United States, and you’re a permanent resident of the United States (i.e., a Green Card holder), a federal or state marijuana-related conviction could also render you deportable from the United States (with the same exceptions noted previously).

Under federal law, a non-citizen is inadmissible (or deportable) for a conviction under any law relating to a controlled substance.  Specifically, a non-citizen is inadmissible for a conviction of “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance.”[2] For immigration purposes, a conviction is defined as a formal judgment of guilt entered by a court.[3]

This article is not intended as a judgment piece on what you did (or did not do) while you were in college, whether you inhaled or not (I personally did not believe that Bill Clinton was telling the truth), and whether the current tidal wave of state-level marijuana legalization is a good thing or not.  That’s for you to decide.

Over the last couple of years, the Biden Administration has explored multiple immigration policies, some of which could, if put in place, be beneficial for those foreign nationals currently living in the United States and who are seeking permanent residence, or those hoping to come to the United States permanently on immigrant visas.  Although not expansive in its scope, and in no way worth the headlines it received, on October 6, 2022, President Biden issued a proclamation granting a pardon to current U.S. citizens and lawful permanent residents who committed the offense of simple possession of marijuana.[4]

What might this mean for potential immigrants to the United States?  Not much, actually.  The proclamation specifically states that it does not benefit “individuals who were non-citizens not lawfully present in the United States at the time of their offense.”  Nor does the pardon suggest that it helps foreign nationals who were otherwise lawfully in the United States but were not permanent residents (e.g., F-1 student visa holders, H-1B specialty occupation visa holders, and so on).  But for U.S. citizens and permanent residents of the United States, the pardon means something.

Although social attitudes about marijuana have changed in recent decades, federal law largely has not kept up with public sentiment.  Marijuana remains a Schedule I controlled substance under federal law, which means the federal government does not acknowledge that it has any medical use and also views it as posing a significant risk of addiction and abuse.  And, because marijuana is on the controlled substances schedules, under our immigration law, any use of marijuana, or even work in the marijuana industry, can prevent immigrants who would otherwise qualify for obtaining permanent residence from getting a Green Card or even for becoming a citizen of the United States.

Pardoning people convicted of federal marijuana offenses might mean that immigrants who previously faced removal from the country can now stay in the United States or might be eligible to return if they were previously removed.  It’s too soon to tell.

Legal marijuana use in the United States is on the rise.  Many states have legalized medical marijuana use, and many others have passed voter initiatives to legalize recreational marijuana growth, distribution, sale, and use.  Unfortunately, in the immigration sphere, there’s a large disconnect between marijuana, U.S. immigration law and state-level initiatives.

As a result of this flux in the state and federal legal landscape related to marijuana, attorneys must be very diligent in keeping up to date on the latest state laws, changes in federal law and regulations, so they can properly (and ethically) advise clients of the potential U.S. immigration consequences of marijuana use (or even business affiliation).

[1] There is an exception that waives inadmissibility based on “a single offense of simple possession of 30 grams or less of marijuana,” as long as the foreign national establishes that: (a) the activities for which the alien is inadmissible occurred more than 15 years before the date of the foreign national’s application for a visa, admission or adjustment of status; (b) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States; and (c) the alien has been rehabilitated.” INA §212(h)(1)(A).

[2] INA §212(a)(2)(A)(i)

[3] INA §101(a)(48)(A).  The Board of Immigration Appeals (“BIA”) has also held that the judgment of guilt must be made in a proceeding that is criminal in nature based on the governing laws of the jurisdiction in question. Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008).  That is, for a marijuana violation to be considered a criminal conviction, there must be a judgment of guilt in a proceeding that is substantially similar to criminal proceedings in that jurisdiction.

[4] See