• Never discuss conduct involving marijuana with immigration, border, consular, or law
enforcement authorities -- unless your immigration attorney has advised that this is safe.
This advisory uses the terms “cannabis,” “marijuana” and “marihuana” interchangeably, since
different statutes use different terms although they all refer to the same plant. Note, however,
that state and federal definitions can differ regarding which parts of the plant they include. The
federal definition of “marihuana” excludes hemp and mature stalks, whereas some state
definitions include one or both of these. The difference may support an immigration defense.
See Part VI, below.
Possible Changes in Federal Law. As of May 2021, there is some possibility that this year
Congress will remove marijuana from federal drug schedules. That would prevent new conduct
and convictions relating to marijuana from being an immigration problem, because marijuana
would no longer be a federally-defined controlled substance. Congress also could include
retroactive provisions to protect immigrants with past conduct or convictions relating to
marijuana. In 2020, the House passed the MORE Act, including these provisions, and a similar
bill is being introduced in the Senate. In light of this, if there is no better option for a case,
consider the “wait, litigate, vacate” options. Wait to file a problematic affirmative case until we
have more information; keep litigating valid claims in an already existing case, which also will
keep it alive in case there is change in the law; and use this time to investigate obtaining a
vacatur based on legal error, to eliminate a conviction for immigration purposes.
II. Federal and State Marijuana Laws
State laws that legalize marijuana fall into two categories. State medical marijuana laws
typically require the person to have a doctor’s order. They permit buying, owning, using, and
often growing a small amount of marijuana, but do not permit giving away, selling (without a
license), or other conduct. State recreational marijuana laws don’t require a doctor’s order, but
do require the person to be an adult. With some restrictions, they may permit buying, owning,
using, growing, and giving away a small amount of marijuana, but not selling (without a
license) or other conduct. States may also license businesses and other entities, and their
employees, to engage in regulated commerce involving marijuana.
In contrast, federal law has no marijuana exceptions for medical or other use. It is a federal
offense to possess, give away, sell, cultivate, import or export marijuana. This includes any
activity, commercial or otherwise, involving almost any part (see Part VI, below) or derivative of
the plant. However, using or being under the influence of a controlled substance, and
possessing paraphernalia, are not federal offenses (see Part IV.D, below).