Lead photo via Wikimedia Commons

It’s easy to forget that marijuana is still classed as a Schedule I drug when you’re rolling a doobie in Colorado or tending bud at a compassionate care clinic in California. But the disconnect between what’s legal state-by-state and illegal federally can cause a lot of grief and confusion in areas as diverse as testing regulations and the production of hemp, to even more complicated issues such as immigration and the treatment of “non-citizens,” which is a catch-all category including tourists, people with work visas, greencard holders, and undocumented people.

A white sheet put out by the Immigration Legal Resource Center in January advises any non-citizen to never admit to any immigration or border official that they have ever used marijuana — even if it was legal in that state or country at the time. Tourists have been barred at the border for admitting to smoking pot and greencard holders can end up in a deportation battle for minor possession charges. Similarly, if an undocumented person is arrested for a marijuana-related charge, it can lead to more serious repercussions than a US citizen would face for the same crime.

To learn more about how marijuana’s federal status as an illegal narcotic can affect non-citizens in unexpected ways, MERRY JANE caught up with immigration lawyer and Golden Gate University Professor Carrie Rosenbaum over the phone. She talked about how racial biases influence immigration cases similarly to policing, past legal cases that surprised her, and how even something as simple as carrying around your legal medical marijuana card could lead to big immigration trouble. 

This interview has been edited for length and clarity.

MERRY JANE: To start, can you tell us about your work and background in the field?
Carrie Rosenbaum: I've been an immigration professor at Golden Gate University for about five years and an attorney working 90% of the time on immigration cases. I also spent a moment working for the DHS as an asylum adjudicator.

What's one major thing people don't realize about how immigration and cannabis policy intertwine?
Because marijuana is legal in some states, people think that anything they do that has to do with marijuana is cool and totally OK. But if they're not a US citizen, anything involving marijuana — whether it's working at a dispensary, smoking pot occasionally, or driving with some of it in their car — can result in them having some really serious immigration problems, even if there's no criminal conviction.

OK, so this includes things like actually smoking the plant – even in legal states — but also working in the industry as a budtender or in an ancillary business that doesn’t touch the plant, right?
If there's something that could be considered a crime relating to marijuana, it could be a problem for someone's immigration case — whether they're not yet in the country and they intend to come in, if they're someone who wants to transition from a tourist to a greencard holder, or anyone who’s considered for what we call an "immigration law admission.” Any time they deal with immigration or a border official, the person is up for consideration as far as who they are and what they have and haven't done. If someone, even in a state where it's legal, has had a medical marijuana card, it can really hamper an immigration case.

If you have a charge or an arrest, even when that didn’t lead to a conviction, it can come back later. For example, if you have a greencard and are applying to naturalize as a citizen, a past marijuana charge can come up and you have to go back several steps, as opposed to getting citizenship.

This doesn't just affect people who are immigrants but also people who are just coming in as tourists…
Immigration laws are federal. What matters for your immigration case is whether or not US immigration authorities are OK with it. And as long as marijuana is illegal at the federal level then it's a problem for immigration. It's similar to how things changed for same-sex marriage. When it was not legal for same-sex partners to marry under federal law, it wasn't legal for same-sex partner to get immigration status. But once that changed at a federal level and there was a Supreme Court ruling stating that same-sex marriage is legal anywhere and everywhere, it meant someone could then get an immigration benefit based on a same-sex marriage.

Can you talk about specific cases that you've worked on or heard about that might surprise readers?
I had one case where a person was arrested and never convicted for buying basically a joint in a park in San Francisco. My client is a very senior person in the tech industry with two US citizen kids, US citizen wife. He was active in his religious community. Totally upstanding member of the community, but he bought a joint once in a park and it came up in for him once we started the citizenship process. It led to ten months of worry and stress while we were putting together his application. Lucky for us, the immigration officer accepted his testimony, but it’s really case-by-case. If we had been in a different city with officers that are less immigrant-friendly, they could have easily said, “We don't believe that you only bought one joint… we think it was more. We're going to deny your case and look into alleging a much worse crime.” We were lucky that it went OK, but it was really stressful. 

So this case went OK, but this person had enough money for a lawyer, to apply for citizenship, and had a very normative life. What about people who aren’t the “ideal citizen” and who are already racially profiled as criminals? How does the discrepancy between state and medical marijuana laws affect those communities?
There’s definitely an overrepresentation of black and brown people when it comes to deportation. Something like 90% of people arrested criminally and deported last year were from Mexico and Central America, but less than 50% of the US immigrant population is from Mexico and Central America. 

Certain jurisdictions are talking about bringing back “broken window” policing, which focuses on low-income communities of color and arresting people for really minor offenses. This would result in a lot more people getting swept up by the criminal justice and immigration enforcement systems. We’re not just talking about drug dealers, but people who are just smoking outside their house or in their car. Also, there are tons of crimes involving marijuana that still exist. Even though marijuana has been legalized, it's still a crime to drive under the influence of marijuana. The same goes for smoking in public. 

How does racial-profiling affect people who are non-citizens when it comes to marijuana law and immigration?
Low-income communities of color are more heavily policed. Not because there's necessarily more crime in their communities, but because that's how decisions are made as far as who to police. As a result, there are disproportionate arrests of people of color and that explains the [demographic] makeup of the prison system, which is unfortunately still much more black and brown and Native American than it is white. And that’s despite the fact that it's way out of proportion with the rest of society. It's the same with immigration and deportation. So, once again, this impact on [immigration statistics] is likely indicative of more policing in communities of color, as well as the other levels of biases that affect the criminal justice system, the courts, and the entire process. 

For more on Carrie Rosenbaum, visit her professor page at Golden Gate University's website.

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