INS rules that possession of marijuana over 30 grams is morally objectionable, but state marijuana records will be expunged in favor of those who were previously denied citizenship for this reason
Attorney David Chu said that the USCIS “Policy Guidance” states that possession of more than 30 grams of marijuana will be considered “morally objectionable” and will affect naturalization, but that New York State’s first-degree marijuana conviction will be expunged, which will benefit people who previously had state but not federal marijuana convictions.
Does New York’s adult-use recreational marijuana legalization bill, signed into law by Governor Cuomo on March 31, mean that there is no risk of marijuana possession in New York State? What impact will the bill have on the naturalization of New York residents? Lawyers say the bill is a state law, while the federal government still considers marijuana to be a class I controlled substance on par with heroin. People need to distinguish between state and federal laws to reduce the risk when naturalizing.
New York City attorney David Chu said that the bill passed by New York State, which allows for the possession and use of recreational marijuana by adults over the age of 21, should be read in the context of state law, noting “one is the amount it sets and the other is the jurisdiction of the law. The law allows adults over the age of 21 to possess no more than three ounces of recreational marijuana, or no more than 24 grams of refined marijuana, and allows adults to grow three mature plants and three immature plants for recreational use at home, with a maximum of six mature plants and six immature plants per household.
At the federal level, marijuana remains a Class I controlled substance under the U.S. federal government’s Controlled Substances Act (CSA), which makes specific activities involving marijuana a crime under federal law. For example, if an adult over the age of 21 possesses three ounces of recreational marijuana on a New York State subway, he is not in violation of the new law in his state, said David Chu. But he takes three ounces of recreational marijuana on an airplane, and he is preparing to leave New York State, which is interstate possession of marijuana and would fall under federal law. “Transportation of marijuana across state lines, by airplane, bus, train, that kind of interstate behavior is controlled by federal law. If you are found in possession of marijuana by federal security, you can be prosecuted in federal court as usual.”
The USCIS Policy Manual requires that applicants for naturalization must be of “good moral character” (GMC), and crimes against any controlled substance (including possession of more than 30 grams of marijuana) are considered to be of poor moral character and will affect Naturalization.
New York State’s newly passed recreational marijuana legalization bill mentions that for people previously convicted of marijuana, their crimes will face being expunged or resentenced. This means that people with previous convictions for marijuana-related misdemeanors could have their convictions expunged and have a chance of being approved to reapply for citizenship, Zhu Wei said. But this marijuana-related conviction record that is not in a court within New York State, but in a federal court, does not clear the criminal record for marijuana in federal court.
Examples of residents’ naturalization being affected by their involvement with marijuana after recreational marijuana was legalized within their state have already occurred in other states. 2019, two legal immigrants in Denver, Colorado (USA) who had been granted green cards in the United States for many years were denied U.S. citizenship on the grounds that they worked in the marijuana industry. Colorado was the first state in the nation to legalize recreational marijuana, which was officially legalized in 2014, and began allowing medical marijuana legalization in 2000. Oswaldo Barrientos, a Denver resident, told the media in 2019 that he was granted a U.S. green card at age 13, but his application for citizenship was denied when he was 30. He was informed in a denial letter from the INS that because he worked in a marijuana field, the act made him lack evidence of “good moral character.
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