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What Recreational Marijuana Legalization Means for Immigrants in New York

Despite recreational marijuana becoming legal statewide, non-citizens still face a significant risk by smoking or ingesting the substance.

The state of New York legalized recreational marijuana in March of 2021, under the Marijuana Legislation and Taxation Act. This means that adults who are 21 years of age or older can possess up to 3 oz of marijuana inside or outside their home, smoke marijuana where smoking a cigarette is permitted, and give amounts of marijuana permitted under the law to others aged 21 or older — as long as there is no exchange of compensation.

Although advocates say that this is a welcome step forward for all immigrant New Yorkers, immigrants still have to take caution when using and possessing marijuana because the consequences can affect noncitizens differently than others. The state of New York now recognizes legal uses of marijuana but the federal government does not.

What happens if immigrants posses more marijuana than the legal limit?

In states that have legalized recreational or medical marijuana, there is still an upper limit on how much marijuana someone can possess, in New York, it’s up to 3oz of marijuana lawfully. The can have a larger amount, if prescribed by a doctor. For immigrants, a marijuana possession conviction can be used as a grounds for deportation, noted Marie Mark, the director of legal support and resources at the Immigrant Defense Project. 

Immigrants applying for immigration benefits, including citizenship or lawful permanent residence can be denied these benefits based on the use or possession or Marihuana.

Immigrants are questioned under oath about drug-related activity when they are applying for an immigration benefit such as lawful permanent residence or citizenship, when they are returning from a trip abroad and when they testify in immigration court proceedings. If they admit to marijuana use, their application for benefits can be rejected.

Also read: Pro-Bono Lawyers And Free Legal Immigration Services in New York

Can the use or possession of marijuana affect immigrants in the process of receiving legal residency or citizenship?

Immigrants who are applying for residency are ineligible for that benefit if they make a legal admission to marijuana possession. The vast majority of people who apply for residency are people who don’t have status yet, so they are deportable, Mark of IDP said. But sometimes, individuals who have some form of status will apply for residency and therefore are subject to these same rules. So if a DACA or TPS recipient applies for residency, they could also be denied it if they make an admission to marijuana possession.

An admission of marijuana related activity could also bar the applicant from establishing “good moral character” in citizenship and other applications, even if the drug is legal in the individual’s state of employment or residence, the Immigrant Defense Project notes.

An establishment of good moral character is necessary for naturalization, and other forms of relief, so an individual can be denied this benefit if they do not meet the criteria for good moral character based on marijuana use or possession.

Immigration authorities can see public-facing social media posts and photos, and can use them as a basis to question someone about marijuana-related activity.

Also read: Recreational Marijuana is Still Risky for Some Immigrants, Even With New York Area Legalization

How does medical use marijuana and dispensaries affect immigrants?

If an immigrant has a medical marijuana prescription, or has helped a loved one apply for one, immigration authorities can use that to elicit an admission about marijuana-related activity.

Immigrants involved in marijuana businesses can face deportation if immigration authorities learn that information when individuals enter the United States from traveling abroad.

As an example, a resident who works in the marijuana industry and then goes on vacation or to visit family in another country, might be charged with being removable when they return to the U.S., said Mark of the Immigrant Defense Project.

What happens if I was convicted before this law came into effect?

If you have a prior marijuana conviction that would be legal under the new law, you can have it expunged and vacated from your record. But you have to appear before an immigration judge.

Under New York legislation, most New Yorkers will have any marijuana conviction that would be legal under the new law completely expunged from their record. But because there is a difference between state and federal law on marijuana use, the automatic expungement is not necessarily valid for immigration purposes and can still result in negative immigration consequences. So immigrants must appear before the court individually in order for a judge to approve the conviction being completely vacated from their record in a way that is also legitimate under immigration law.

The New York Police Department can no longer approach, stop or arrest people, 21 and older, for using marijuana in most spaces where smoking tobacco is allowed, including on sidewalks, front stoops and other public places.

“It’s very very important for immigrant communities and noncitizens to know that any involvement with marijuana—even if it’s under lawful conduct under the law of the state that they live in—can have negative consequences.”

Catherine Gonzalez, a senior staff attorney with the Brooklyn Defender Services.

Also read: Legal Help for immigrants in New York State

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