Published May 2, 2019
A lawful permanent resident (green card holder) seeking to become a U.S. citizen must fulfill a number of requirements when submitting their Application for Naturalization and in order to be approved to take the oath of U.S. citizenship. In addition to a requisite number of years of permanent residence and physical presence in the U.S., an applicant for naturalization must demonstrate that he/she is of “good moral character” and for a specified period leading up to their application. Now, according to a new policy memo issued by the Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS), an applicant may be deemed to lack good moral character if he/she has used or possessed marijuana, and regardless of the legality of such action under any given state law.
According to the DHS/CIS memo “(a)n applicant who is involved in certain marijuana-related activities may lack [good moral character] if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws,” and thus their application may be denied.
This memo was released after city leaders in Denver, Colorado reached out to U.S. Department of Justice for policy guidance on possible conflicts between federal law and their state law allowing for the use and sale of marijuana. As is well known, Colorado is among 10 states that have legalized recreational marijuana use and with many other states allowing its use for medical purposes.
The request from Denver city leaders was prompted by news that the applications for naturalization of 2 lawful permanent residents living there were denied on moral character grounds due to their work in the legal cannabis industry.
According to the recent memo: “[USCIS] is issuing policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law”.
As a matter of background, the most common reason cited by DHS/CIS to deny an application for naturalization based on moral character grounds typically has involved some sort of criminal conviction in the applicant’s background in the 3 or 5 year statutory period leading up to the application, although a conviction is not necessarily required to support such a denial. Other common bases involve failure to pay income taxes or child support. Importantly, not all bases to deny an application for naturalization necessarily lead to an applicant facing removal proceedings or other immigration obstacles, although in these times prospective applicants with any criminal background are well advised to be cautious in proceeding and to carefully assess their risks before submitting an application.
The two recently denied applicants from Denver, one originally from El Salvador and the other from Lithuania, have both resided lawfully in the U.S. 20+ years, have no criminal background, have paid their taxes, completed various levels of schooling in Colorado and consider Colorado their home.
In sum, this problem is a classic case involving a clash between diametrically opposed federal and state laws, a conflict likely to be resolved in our federal courts, and with an appeal all the way up to the U.S. Supreme Court not unlikely.
PUBLISHED May 2, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois