Marijuana Crimes Are Still a Deportable Offense Under Federal Law



A number of states have recently amended their laws to “de-criminalize” the possession and distribution of marijuana.

As FAIR has noted, many open borders advocates have argued that aliens with state cannabis convictions should no longer be subject to deportation. According to the open borders contingent, deporting aliens with marijuana convictions in states that have “legalized” cannabis, “is but the latest hard-line stance taken toward immigrants and immigration by the Trump administration.”

That’s an interesting claim, because, according to the Los Angeles Times, the resoundingly liberal Ninth Circuit Court of Appeals recently held that, “California’s legalization of marijuana doesn’t protect immigrants from deportation if they were convicted of pot crimes before voters approved the new law in 2016.”

As KTLA-5summarized the court’s holding, “federal immigration law does not recognize the state’s decision to reclassify a valid conviction.” That’s because cannabis is still a controlled substance under federal law. And federal law is applicable in all 50 states and all U.S. territories.

Despite misleading reports in the popular press, marijuana has not actually been legalized in a California, or any of the other states claiming to have legalized it. Yes, some jurisdictions have removed the possession and distribution of cannabis from their local criminal codes. However, while individuals may no longer be subject to state prosecution for having or selling marijuana, they continue to be subject to federal prosecution.

In fact, pursuant to Article VI, Paragraph 2 of the U.S. Constitution, known as the Supremacy Clause, federal law takes precedence over state laws. So, contrary to popular opinion, the possession and distribution of marijuana remains a criminal offense everywhere in the United States. And the Immigration and Nationality Act (INA) explicitly denies immigration benefits to foreign nationals who possess or traffic in illicit drugs.

Therefore, any alien who has a valid conviction for the possession or sale of marijuana is subject to removal from the United States. That’s why lawfully present immigrants working in marijuana dispensaries that are “legal” under state law have been denied citizenship and have been deported.

The claims that this is somehow unfair (and “racist”) are utterly specious:

  • U.S. citizens are subject to the very same laws governing marijuana use, possession and sales. A native-born American who works in a “legal” pot dispensary in Colorado or Seattle will be denied a federal job, can’t qualify for a security clearance and likely won’t be eligible for a host of professional licenses and trade certifications (e.g., aviation, maritime, HAZMAT transport, etc.)
  • Despite highly publicized polls claiming that a majority of Americans favor the legalization of marijuana, proposals to decriminalize the drug remain controversial. Thirty-three states have legalized medical marijuana, prescribed and used under the supervision of a licensed physician. However, only 10 states and the District of Columbia have legalized marijuana for recreational use. And most law enforcement professionals remain staunchly against the legalization of pot.

While there is no national consensus about whether we should legalize weed, there is a clear consensus about immigration law – Americans want the INA enforced, as written. So, until such time as U.S. citizens prevail upon Congress to change federal pot laws, marijuana use and the cannabis industry remain off-limits to foreign nationals who want to keep their visas or become citizens.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

2 Comments

  1. avatar

    Let’s See

    Tobacco and alcohol kill people, pot does not.

    Twinkies can kill people and coffee is classed a “mild stimulant” drug. Marijuana is classed a “mild euphoric” drug…seems like pot and caffeine are similar…LOL

  2. avatar

    The U.S. Federal government’s position on cannabis is, and has always been blatant bold faced lies. More evidence comes out every day proving that cannabis is much safer than alcoholic beverages or tobacco products. The DEA “drug schedule” has absolutely nothing to do with public safety and everything to do with politics and government corruption. Based on the DEA cannabis is more dangerous than Methamphetamine, Cocaine or Fentanyl!! Serial killers tobacco and alcohol are not even on the DEA drug schedule!

    * SCHEDULE 1
    Heroin, LSD, Marijuana (cannabis), MDA (ecstasy)

    * SCHEDULE 2
    Cocaine, Methamphetamine, Oxycodone, Fentanyl, Dexedrine.

    * SCHEDULE 3
    Tylenol with codeine, Ketamine, Anabolic steroids, Testosterone.

    Enough with reefer madness, Legalize, regulate and tax recreational cannabis!

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