Proceed with Caution: Ninth Circuit Says LPR’s Participation in State-Legal Cannabis Industry “Categorically Precludes” Naturalization

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As the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) recently underscored, participation in the cannabis industry – even in states where cannabis is legal – is extremely risky for a non-U.S. citizen. By participating even in the state-legal cannabis industry, a non-U.S. citizen may disqualify themself from becoming a U.S. citizen or a lawful permanent resident (“LPR”). Participation in the cannabis industry could even lead to that person’s removal from the United States.

Reimers v. United States Citizenship & Immigration Services

In a June 2, 2023, Memorandum opinion, which was not for publication, the Ninth Circuit ruled that an LPR’s “operation of a licensed marijuana business categorically precludes her from qualifying for naturalization.”

In Reimers v. United States Citizenship & Immigration Services, No. 22-35248 (9th Cir. June 2, 2023) (Mem.), the Ninth Circuit considered the U.S. Citizenship & Immigration Services’ (the “USCIS”) “denial of [the LPR’s] application for naturalization.” As that federal appellate court explained, the LPR “challenge[d] the [federal] district court’s holding that she is ineligible for naturalization.”

Affirming the U.S. District Court for the Eastern District of Washington’s decision, the Ninth Circuit opined, in relevant part:

To qualify for naturalization, an applicant must establish that “during the five years immediately preceding the date of filing [the] application,” she “has been and still is a person of good moral character.” 8 U.S.C. § 1427(a). But an applicant is precluded from establishing good moral character if she violated the Controlled Substances Act (“CSA”). 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(II); 8 C.F.R. § 316.10(b)(2)(iv). A violation of the CSA is “a per se bar to naturalization.” Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir. 2016).

[The LPR] admitted to operating a marijuana business. Even though [her] business is licensed under Washington law, it nevertheless constitutes a violation of the CSA. See 21 U.S.C. § 812, Schedule I(c)(10) (designating marijuana as a controlled substance). And even though [she] may otherwise be eligible to naturalize, her operation of a licensed marijuana business categorically precludes her from qualifying for naturalization.

Voronin v. Garland

The Ninth Circuit’s recent decision, unfortunately, aligns with an August 2022 decision by the U.S. District Court for the Central District of California (the “Central District”). In Voronin v. Garland, No. 2:20-cv-07019-ODW (AGRx), 2022 WL 3101534 (C.D. Cal. Aug. 4, 2022), that federal district court considered the denial of a Russian national’s application to become an LPR.

In mid-2015, the Russian national, the Central District explained, “began working at Los Angeles Wonderland Caregivers, a cannabis cultivation collective. Under California law, premises that cultivate or sell cannabis must have a digital video surveillance system, and the system must adhere to certain standards. [The Russian national’s] job at Wonderland was to install and maintain a compliant video surveillance system at Wonderland’s premises” (citations omitted).

“Under the cannabis laws in effect in California at the time, in order to work for Wonderland,” that court continued, the Russian national “was required to become a member of Wonderland’s cannabis collective, which he did by signing Wonderland’s collective agreement. Under the agreement, [he] and other members of the collective received a ‘reimbursement fee’ for their contributions to the collective …” (citations omitted). The Russian national, however, “never received any cannabis plants from” the collective; and his work there “never involved growing, selling, or processing cannabis.”

“Wonderland,” that court explained, “did not have a license under California law to grow cannabis at the location where [the Russian national] provided his services.” The police, therefore, “raided” the location. The Russian national was charged with violating California law.

As a result, the USCIS denied his “I-485 application for permanent residence,” finding:

While you did not work at Wonderland on a full-time permanent basis, and you personally did not sell marijuana, your work setting up the video security system at Wonderland and training [Wonderland’s manager] and employees on how to use the surveillance system was necessary for the operation of the business. The fact that you were paid cash and consider yourself as having been an independent contractor does not negate the fact that your work was necessary for Wonderland’s operation. You were responsible for installing and maintaining the video security at a marijuana grow house for an organization that grows, cultivates, sells, and distributes a federally controlled substance ….

Because Wonderland engages in the trafficking of marijuana as defined under federal law, and you spent several months working at Wonderland installing video surveillance equipment, you have knowingly assisted in the trafficking of marijuana.

The Russian national challenged this outcome, which was predicated at least in part on 8 U.S.C. § 1182.

“The question,” the Central District stated, “is whether [the] USCIS committed legal error in determining that [the Russian national] had assisted in the trafficking of cannabis by maintaining Wonderland’s surveillance system. The answer to this question is ‘no.’”

That court opined:

Currently, cannabis is a federal Schedule I controlled substance, and [the] USCIS is bound by federal law in adjudicating immigration applications. These points of law are beyond dispute. [The Russian national] also does not dispute that he entered into an ongoing services contract with a cannabis collective under which he was to install and maintain a video surveillance system on the cannabis collective’s premises. He therefore does not dispute that he took a job maintaining a surveillance system at a company involved in what federal law considers to be drug trafficking. The fact that [his] relationship with Wonderland was ongoing, and that he was responsible for maintaining the surveillance system and training other Wonderland employees on how to use it, makes [his] work unlike that of a plumber who might fix Wonderland’s pipes or an Uber driver hailed to transport Wonderland’s personnel from one work location to another. These types of contractors provide services on a one-off basis without establishing any deeper or ongoing relationship with the hiring entity, and they differ materially from [the Russian national’s] position in these aspects.

Therefore, the Central District concluded, the “USCIS applied the law to these facts and found that [the Russian national] assisted in the trafficking of cannabis. It did not err in reaching its Decision.”

Walcott v. Garland

In Walcott v. Garland, 21 F.4th 590 (9th Cir. 2021), however, the Ninth Circuit held that a violation of Arizona law for marijuana-related conduct was not a “crime involving moral turpitude” (“CIMT”), as that term is used in 8 U.S.C. § 1227(a)(2)(A). In Walcott, the Ninth Circuit opined, in relevant part, that “[t]he widespread legalization of marijuana makes it clear that offering to transport for sale a very small amount of marijuana does not involve conduct that violates accepted moral standards” (footnote omitted). Ultimately, that court held that the “marijuana convictions are not CIMTs.” Therefore, the Ninth Circuit determined, the petitioner “was not removable … under 8 U.S.C. § 1227(a)(2)(A)(ii)” (footnote omitted).

Proceed with Caution

While other judicial decisions likely do or may affect the relevant legal analysis, the Ninth Circuit’s recent ruling in Reimers alone stands as a warning to all non-U.S. citizens: Beware! Participation in the cannabis industry – even in states where cannabis has been legalized – comes with significant legal – and personal – risk. As case-law has demonstrated, work in this industry could be the basis for denial of citizenship or LPR status, or even for removal. As such, non-U.S. citizens must proceed with extreme caution when it comes to the U.S. cannabis industry.

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