How US Federal Cannabis Legalization Would Affect US Immigration Laws

Introduction

During the 115th United States Congress, several Bills were introduced to legalize marijuana at the federal level. The Bills that received the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). However, when the 115th United States Congress ended on January 3, 2019, these three Bills (collectively, the Congressional Bills) died.

The Congressional Bills must be reintroduced in the 116th United States Congress before they may be considered again. Assuming that all three are eventually reintroduced (without change) during the 116th United States Congress, an analysis of how they might affect the ability of foreign nationals (i.e., individuals other than US citizens) to enter the United States is provided below.

The Congressional Bills

The STATES Act

During the 115th United States Congress, Sen. Elizabeth Warren (D-MA) introduced the STATES Act in the Senate on June 7, 2018. On the same day, Rep. David P. Joyce (R-OH) introduced an identical version of the STATES Act in the House of Representatives.

For the 116th United States Congress, Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO) reintroduced the STATES Act in the Senate on April 4, 2019. Rep. Earl Blumenauer (D-OR) also reintroduced the STATES Act in the House of Representatives on the same date.

The STATES Act would leave marijuana as a Schedule I controlled substance under the Controlled Substances Act (CSA). However, it would also clarify that the CSA (subject to limited exceptions) does not apply to a person who acts in compliance with the laws of a particular state, or a federally-recognized Indian tribe within its jurisdiction, relating to the manufacture, production, possession, distribution, dispensation, administration or delivery of marijuana.

In other words, if a particular state or tribe has legalized marijuana, an entity engaged in marijuana-related activities within its jurisdiction would be deemed not to have violated the CSA. However, in other jurisdictions where marijuana remains illegal, it would be considered a federal offense, as well as a state offense.

The STATES Act may have the highest probability of becoming law. The day after the STATES Act was first introduced, President Trump confirmed that he would probably end up supporting it.

The Marijuana Justice Act

During the 115th United States Congress, Sen. Cory Booker (D-NJ) introduced the Marijuana Justice Act in the Senate on August 1, 2017. Rep. Barbara Lee (D-CA) introduced an identical version in the House of Representatives on January 17, 2018.

For the 116th United States Congress, Sen. Cory Booker (D-NJ) reintroduced the Marijuana Justice Act in the Senate on February 28, 2019. Rep. Barbara Lee (D-CA) also reintroduced the Marijuana Justice Act in the House of Representatives on February 28, 2019.

The Marijuana Justice Act would provide for the removal of marijuana and tetrahydrocannabinoids (THC) from Schedule I of Subsection 202(c) of the CSA. It would also require each federal court to expunge convictions for any federal offense (but not a state-level offense) involving marijuana use or possession, which occurred before the effective date of the legislation.

The Marijuana Freedom Act

During the 115th United States Congress, Sen. Chuck Schumer (D-NY) introduced the Marijuana Freedom Act in the Senate on June 27, 2018. On May 9, 2019, he announced that he would be reintroducing the Marijuana Freedom Act in the Senate and that Rep. Hakeem Jeffries (D-NY) would be reintroducing an identical bill in the House of Representatives.

The Marijuana Freedom Act would also remove marijuana and THC from Schedule I of Subsection 202(c) of the CSA. However, it would not provide for federal expungements of past offenses.

Marijuana possession/Use after federal legalization

Under §212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (INA), individuals who have been convicted of...