Conditional "Good Moral Conduct" Bar Applies Regardless of State-Law Decriminalizing Cannabis
One of the most important concepts in immigration practice is the idea of good moral character (“GMC”). Good moral character can come up in many scenarios, including when filing forms for various immigration benefits, petitioning for permanent residence and most important, applications for citizenship. Often times, GMC is a fundamental requirement to many immigration benefits and the failure to demonstrate it will likely result in a denial of an application. Even in cases where it is not a strict requirement, GMC, or lack thereof, can have a damaging impact on whether an application for immigration benefits is approved or not. It is also incredibly important to know that immigration officers or adjudicators are given a large degree of discretion; it is always wise to consult with an experienced immigration attorney that can help navigate current immigration policy and regulations.
In one situation where GMC is paramount is when applying for naturalization. Naturalization is a process in which GMC is a strict requirement that must be satisfied, especially for the statutory period of five (in some instances three) years. There are other cases where an applicant may never make a showing of good moral character and others where an applicant’s conduct poses only a temporary bar to showing good moral character. Applicants who trigger permanent bars to good moral character will likely be unable to become naturalized, even if a significant amount of time has elapsed since the triggering act or conduct occurred.
Permanent Bars to Good Moral Character
According to USCIS, the permanent bars are as follows:
Murder: an applicant who has been convicted of murder at any time is permanently barred from establishing GMC for naturalization;
Aggravated Felony: in 1996, Congress expanded the definition and type of felonies considered “aggravated” in the immigration context. An applicant who has been convicted of an aggravated felony on or before November 29, 1990, is permanently barred from establishing GMC for naturalization. An applicant who has been convicted of an aggravated felony prior to Nov. 1, 1990, is not permanently barred however, immigration officers are directed to consider many factors including the seriousness of the underlying offense and whether a term of imprisonment was ordered as a sentence;
Persecution, Genocide, Torture, or Severe Violations of Religious Freedom: an applicant who is responsible for or has been implicated in forms a religious persecution, torture, or who has subjected a group of people to harm will have the burden of demonstrating that he/she is not ineligible for immigration benefits/naturalization. Conduct includes nazi persecutions, genocide, suppression of religious freedoms (even under color of law of a foreign country), prolonged detention of people, causing the disappearance of persons, or “other flagrant denial of the right to life, liberty, or the security of persons.”
Any person who falls into the categories listed above should consult with an experienced immigration attorney that can help explain the ramifications of such behavior. Naturalization may not be a viable option under such circumstances and an application may pose the risk of removal or deportation.
In addition to permanent bars, the Immigration and Nationality Act (INA), and corresponding regulations, include bars to GMC that are not permanent, or are conditional.
Conditional Bars for Acts During the Statutory Period
United States Citizenship and Immigration Services (USCIS) considers the following acts sufficient to trigger temporary bars, or conditional bars to establishing GMC. These bars are triggered for specific conduct and acts undertaken by the applicant within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance. Moreover, an act or offense that does not necessarily fall within a permanent conditional bar to GMC may nonetheless hinder an applicant’s ability to establish GMC. When conduct triggering a conditional bar is adjudicated, immigration officials are directed to review relevant federal and state law of the United States, or law or regulation of any foreign country to determine whether the applicant can establish GMC.
The following is a reference on the general conditions and acts triggering a conditional bar to establishing GMC for acts occurring during the statutory period:
One or more crimes involving moral turpitude (CIMTs), other than political offenses;
Conviction of two or more offenses with a combined sentence of five (5) years or more, except for political offenses;
Controlled Substance Violation - a violation of ANY law on controlled dangerous substances, except for simples possession of 30 grams or less of marijuana;
Incarceration for a total period of 180 days or more, except for political offenses;
Providing false testimony under oath for the purpose of obtaining any immigration benefit;
Engaged in prostitution offenses, attempted or procured to import prostitution, or received proceeds from prostitution;
Practiced or currently engaging in the practice of polygamy (the custom of having more than one spouse at the same time)
More than one conviction for gambling offenses or engaging in conduct where one derives principal income from illegal gambling activities;
Is or was at one point a habitual drunkard;
Willfully failure or refusal to support dependents, unless extenuating circumstances are established, often by court order;
Having committed adultery or engaged in a extramarital affair tending to destroy an existing marriage, unless extenuating circumstances are established;
Unlawful acts that tend to adversely affect establishing GMC, 8 CFR 316.10(b)(3)(iii).
Crimes involving moral turpitude (CIMT) is a term of art used in immigration practice that has no statutory meaning though, extensive case law provides sufficient guidance on whether an offense rises to the level of a CIMT. Courts have consistently ruled that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” While vague and inconsistently enforced, CIMTs often require a reprehensible act with some form of guilty knowledge.
As the trend to decriminalize and further, allow for the cultivation and distribution of cannabis becomes even more widespread, the violation of controlled substance laws (#3 on the above-referenced list) should be the most striking. As of today, 33 states have legalized medical cannabis and 11 have allowed for recreational cannabis use. Despite state and local governments in favor of the cannabis industry, the federal government has continued to reinforce dated enforcement policies and draconian cannabis laws.
Controlled Substance Violations
A controlled substance is defined in the Controlled Substances Act (CSA) as a “drug or other substances, or immediate precursor” that is included in the schedule or attachments in the CSA. It is important to know that the substance underlying the applicant’s state law conviction or admission must be listed in the CSA. It is also important to note that possession of paraphernalia related to controlled substances may also constitute an offense and could preclude the applicant from establishing GMC.
An applicant for naturalization or an immigration benefit cannot establish GMC if he/she has violated any controlled substance-related federal or sate law or regulation of the United States or law or regulation of any foreign country during the statutory period. This applies to a conviction for such an offense or an admission to such conduct, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law. More alarming, the Attorney General has directed this bar apply to individuals who may have benefited financially from a spouse or parent’s drug trafficking activities yet had no involvement.
Conditional Bar Applies to Marijuana Offenses
While a number of states and the District of Columbia (Washington D.C.) have enacted legislation permitting medical or recreational use of marijuana, Congress has yet to act and marijuana remain classified as a “Schedule I” controlled substance according to the CSA. This means that according to Congress, marijuana has no accepted medical use and further, the manufacture, cultivation, possession, or distribution may lead to criminal and immigration consequences.
On April 19, 2019, USCIS published a Policy Alert, PA-2019-02, entitled “SUBJECT: Controlled Substance-Related Activity and Good moral Character Determinations.” This policy announcement modifies the USCIS Policy Manual, 12 USCIS-PM F.5, which deals with conditional bars to good moral character and further clarifies that any violation of federal controlled substances law is generally a conditional bar to good moral character. Shockingly, the PM states that this also includes marijuana-related activities where such conduct is not unlawful under applicable state or foreign laws.
The PM states that while numerous states and the District of Columbia have enacted laws permitting the use of medical marijuana or recreational marijuana, “[m]arijuana…remains classified as a ‘Schedule I’ controlled substance under the federal [Controlled Substances Act (CSA)].” Further, because marijuana remains a Schedule I controlled substance according to the CSA, “certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law.” (Emphasis added). Incredibly, the PM continues to explain that marijuana offenses under federal law “may include, but is not limited to, possession, manufacture, or distribution or dispensing of marijuana.” Quite simply, this means that the possession of cannabis for medical or recreational purposes or employment in the cannabis industry may constitute conduct that violated federal law.
With this in mind, it is important for green card holders and prospective immigrants to understand the current administration’s archaic stance regarding the manufacture, cultivation, and legal retail distribution of cannabis. For a naturalization applicant, “these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. The updated Policy Manual provides that, “even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.” While there is an exception for simple possession of 30 grams or less of marijuana and possession of paraphernalia offense related to simple possession of 30 grams or less of marijuana, the PM update makes it clear that conduct related to the cannabis industry is simply not tolerated by the federal government.
Because of the possible conditional bar to good moral character, it is important for aliens—especially those planning to apply for naturalization—to remember that activities related to the cannabis industry can lead to severe scrutiny and possible adverse consequences under current immigration regulations. If an alien has any doubt about whether a specific activity may cause problems for his or her immigration status or aspirations, they should immediately consult with an experienced immigration attorney. It is an unfortunate update in immigration policy but green card holders and other affected parties should be warned.