Legalization of Recreational Marijuana In New Mexico Could Be A Potential Trap For Immigrants
UPDATE: On April 1, 2022, adult-use cannabis sales officially became legal in New Mexico.
Governor Michelle Lujan Grisham recently signed the Cannabis Regulation Act legalizing recreational marijuana for adults 21 years and older within the state. Set to go into effect as early as this June, the legislation has support for its potential spurring economic development and for its focus on addressing the history of drug criminalization on marginalized communities. Unfortunately, the new law will put our immigrant community in a vulnerable position. This is because despite state-level legalization and decriminalization of marijuana it remains classified as a controlled substance and, as such, is criminalized under federal law.
Immigration law is governed by federal law, and as long as marijuana is prohibited under federal law, activity relating to marijuana can trigger severe immigration consequences. Marijuana-related activity, even when legal at the state level, can make someone inadmissible (barred from entering or returning to the US), deportable, ineligible for certain immigration relief, and can bar them from establishing the good moral character necessary to become a citizen.
Notably, the new law takes steps to address the historic over policing and criminalization of marijuana in marginalized communities, including offering automatic expungements for past marijuana offenses and entrepreneurial opportunities promoting diversity and inclusion in the cannabis industry.
These steps can end up being deportation traps for our immigrant community.
For example, expungements do not erase an underlying arrest or conviction record for immigration purposes. This means that even where an arrest or conviction is no longer valid because it is no longer a crime in New Mexico, it can still form the basis for a deportation and mandatory detention. Further, while the law centers economic opportunities for communities that have been disproportionately harmed by over-policing of marijuana, including tribal, acequia, and other historically marginalized communities, immigrants that dare to take advantage of these new opportunities risk being deemed drug traffickers. Lastly, even if a person doesn’t have a marijuana-related criminal record and has never worked in the cannabis industry, they risk immigration consequences by just admitting to marijuana possession or use. This puts immigrants in danger because they may wrongly believe it is safe to disclose seemingly lawful conduct to federal officials such as at the border, a Customs & Border Patrol (CBP) checkpoint, or at an immigration interview.
Some states that have legalized recreational marijuana, such as Washington state, have seen immigration officers aggressively ask noncitizens about marijuana use and conduct. While we must wait to see how our local immigration officials will approach the topic, it appears immigration authorities have doubled down on their efforts to punish immigrants regardless of state laws decriminalizing marijuana. In a 2019 national policy update, U.S. Citizenship and Immigration Services (USCIS) reaffirmed that even if marijuana possession or employment is legal under state law, it remains prohibited under federal law and will be a bar to establishing good moral character, if conducted within the requisite timeframe- a requirement for becoming a citizen.
Given the detrimental impact that marijuana criminalization has had on marginalized communities, it is imperative we not only decriminalize marijuana at the state level, but also federally. Currently, Congress is hearing a bill to amend the Immigration and Nationality Act to remove marijuana-related conduct from good moral character determinations (HR1614). While this is a good first step, we must also take marijuana off the federal drug schedule, and remove all marijuana-related conduct out of immigration law if we want to end the continued criminalization of immigrants through outdated laws. Until then, educating our immigrant community of the immigration consequences of marijuana is necessary.
Arifa Raza is the former Supervising Attorney for the New Mexico Immigrant Law Center’s Detention & Asylum program.
Written by Arifa Raza, NMILC’s Detention Program Supervising Attorney (Published May 7, 2021)