Dykema: Cannabis Continues to Demonstrate Major Differences Between State and Federal Law

While more and more states move to legalize various uses of cannabis, a recent decision on an application for U.S. citizenship demonstrates its possession, use, and distribution remain illegal under federal law and can have significant consequences.

The U.S. Citizenship and Immigration Service (USCIS) and State Department routinely deny visa applications by foreign nationals engaged or planning to engage in, the cannabis industry both abroad and in the United States because these activities violate federal controlled substance laws.

Salvadoran citizen Maria Elena Reimers’ application for U.S. citizenship was denied in 2018 because she operates a licensed marijuana business in Washington (state) with the USCIS explaining that while this activity is legal under that state’s law it remains illegal under federal law. As someone engaged in this field, she was an “illicit trafficker of a controlled substance” and therefore failed to satisfy the “good moral character” requirement for naturalization applicants.

Reimers sued the USCIS in federal court in December 2020, with a judge ruling in February 2022 that her application was properly denied.

Reimers appealed to the Ninth Circuit Court of Appeals claiming the USCIS had treated her differently than U.S. citizens who participated in the cannabis industry. Rejecting this rationale, the court ruled on June 2, 2023, that she was not a U.S. citizen and that U.S. citizens are not subject to naturalization laws. It further stated that she had failed to demonstrate the immigration service had not treated other non-citizens differently in upholding the lower court’s decision.

This decision emphasizes the fact that federal courts will uphold immigration officials who continue to apply federal controlled substance statutes that conflict with more permissive state and local laws.

Foreign nationals and green card holders are well-advised to seek legal guidance before engaging in the cannabis field due to the almost certain negative effect it will have on any attempt to obtain an immigration benefit.