Federal - State Law Conflict

In a split decision last Thursday, the U.S. 9th Circuit Court of Appeals affirmed the conviction of Morro Bay marijuana dispensary owner Charles Lynch and remanded the case to the district court for a factual determination as to whether Lynch’s activities were in strict compliance with California law. [Link to case here.] Continue Reading Appropriations Rider Gives Sliver of Hope For California Dispensary Owner Caught Between Conflicting State and Federal Laws

While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits.  This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.

Notwithstanding contrary state laws, marijuana continues to be deemed a Schedule I narcotic as defined at 21 U.S.C. § 812((b)(1), meaning it has been found to have “a high potential for abuse”, “no currently accepted medical use in treatment” or a lack of “accepted safety for use of the drug or other substance under medical supervision.” 21 U.S.C. § 812((b)(1)(A)-(C). 21 U.S.C. § 844 makes illegal under federal law simple possession of any Schedule I substance.  Current Attorney General Jeff Sessions has rescinded prior Obama-era Department of Justice guidance accommodating State laws on marijuana, particularly those allowing its possession and use for medical purposes.  As such, the Department of Justice has returned to an aggressive posture  on narcotics enforcement with respect to marijuana.

While the agency has not issued any new guidance or disclosed any changes in adjudication policy, the Department of Justice’s approach is likely to be mirrored in the consideration of such conduct by U.S. Citizenship and Immigration Services (“USCIS”)

8 U.S.C. § 1182(a)(2)(A)(i)(II) makes inadmissible to the United States a foreign national:

“convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21)

At the risk of stating the obvious, lying on an immigration application is also a basis of inadmissibility, 8 U.S.C. § 1182(a)(c)(i), so it is neither here nor there if a violation was denied, where USCIS has in its possession evidence showing the existence of a crime.

8 U.S.C. § 1182(h)(1) does provide for a  narrowly available waiver, at the discretion of USCIS, of this inadmissibility in the case of simple possession. That waiver is available where the disqualifying conviction occurred more than fifteen years prior to the application,  the admission of the applicant “would not be contrary to the national welfare, safety or security of the United States”, and the applicant “has been rehabilitated.” 8 U.S.C. § 1182(h)(2) provides for a waiver where a showing is made that “denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”

Also 8 U.S.C. § 1182(a)(1)(A)(i) makes inadmissible someone determined to be a drug abuser or drug addict, a determination which would be made by a civil surgeon acting under designation by USCIS. See, USCIS Policy Manual, Volume 8 (Admissibility), Part B Health-Related Grounds of Inadmissibility, Drug Abuse or Drug Addiction (updated July 26, 2018).  This ground becomes waivable where a civil surgeon certifies that the applicant is rehabilitated.

While marijuana gains greater legal and cultural acceptance in the U.S., it still presents a considerable hazard for those seeking to obtain or maintain immigration benefits.  Given the Federal government’s turn away from Obama-era policies with respect to marijuana-related law enforcement, great care should be exercised in addressing marijuana possession and use issues when seeking immigration benefits.  For some, it may in fact turn out to be a disqualifier.

 

Amidst a public disagreement between President Trump and Attorney General Jeff Sessions regarding the conflict between federal and state marijuana laws, Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO), announced introduction of a bipartisan bill to protect states with pot-friendly laws against federal prosecution. The bill, introduced on June 7, 2018 and called the “Strengthening the Tenth Amendment Through Entrusting States Act” or the “STATES Act”  proposes to protect state cannabis industries from the ire of federal drug enforcement authorities. A companion bill also has been introduced in the House.  The full text of the Senate bill, S. 3032, is available here, and the corresponding House bill, H.R. 6043, is available here. Continue Reading Will President Trump Support a Bipartisan Congressional Effort to Protect State Marijuana Laws?

In October 2017, Green Solution Retail, Inc., a cannabis retailer, petitioned the U.S. Supreme Court (SCOTUS) to review a decision which held that the Anti-Injunction Act and Declaratory Judgment Act barred Green Solution’s request to enjoin the IRS from enforcing § 280E of the Internal Revenue Code. Continue Reading The High Court Could Review the IRS’ Power to Investigate and Determine Whether Cannabis Dispensaries Engage in Illegal Activities

In a recent article, senior officials with the Department of Justice’s Office of the United States Trustee (the “UST”), the federal government’s watchdog of the bankruptcy system, reaffirmed the department’s position that bankruptcy relief is not available to businesses in the weed industry.  Such a reaffirmation of a well-established policy is not new. However, the article is noteworthy in that it clarifies just how broadly the UST is willing to expand the scope of that policy and that it may prevent “downstream” participants, such as landlords of marijuana dispensaries, from accessing relief under the bankruptcy code. Continue Reading U.S. Trustee Issues Warning to ALL Participants in the Cannabis Industry: Bankruptcy Relief May Not be Available, So Don’t Let Your Profits Go Up in Smoke

According to reports appearing this morning in the New York Times and the Washington Post, Attorney General Sessions is expected to rescind the Cole Memorandum later today.  The Cole Memorandum is a Department of Justice policy that strongly discourages federal prosecutors from enforcing federal marijuana laws in states in which possession and use of marijuana is legal under state law.

Sessions has long been a critic of legalizing marijuana use, but until now has taken no tangible steps to halt its use in states which have legalized it.  Rescinding the Cole Memorandum makes it easier for federal prosecutors to commence criminal actions against companies and individuals in the cannabis industry.  Even with yesterday’s appointment of seventeen new US Attorneys, it remains to be seen whether federal enforcement of marijuana laws will increase as a result of the recession of the Cole Memorandum.  Whether or not federal prosecutions increase, the rescission of the Cole Memorandum is sure to cause many businesses and investors in the cannabis industry to rethink their strategies.

Transport of marijuana in states where it is legal to islands located within the state is complicated by the fact that transportation by air generally violates federal law.  Rule 91.19 of the Federal Aviation Regulations (14 CFR 91.19) generally prohibits civil aircraft from knowingly transporting marijuana and other types of illicit drugs within the US.  The prohibition initially applied to flights between US and Mexico but was subsequently amended to include flights solely within the US.  However, the rule contains an exception for the transport of drugs “authorized by or under any Federal or State statute or by any Federal or State agency” and, as was recently reported by The Boston Globe (State Eyes Flight Rule to Ship Marijuana to Islands), the chairman of Massachusetts’ Cannabis Control Commission is looking at the exception as a means to potentially permit air transport of marijuana to Martha’s Vineyard and Nantucket.

A former Federal Aviation Administration (“FAA”) lawyer quoted in the Globe piece raises the question of whether the exemption applies if use of the drug is authorized by the state or whether the transport of the drug must be expressly authorized by the state. The wording of the regulation does appear ambiguous in this respect and the FAA has not provided any guidance on the topic.

There are also published accounts (Weed On A Plane: How Alaska Businesses Get Pounds Of Pot On Board, With Police Blessing) of marijuana businesses in Alaska making use of the provisions of the regulation that the carrier only violates the rule if it knowingly transports the drug.  The businesses inform the airport police and TSA that they are transporting marijuana and provide documentation of their authorization to do so. Neither the business nor the police informs the airline so it is unaware that it is transporting marijuana. In the end, with cooperative police, the more viable alternative may prove to be “don’t ask don’t tell” provided that the marijuana is packaged so as to disguise the smell.

Attorney General Jeff Sessions is in the news for two reasons today: he’s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.

Last month we reported that Congress extended the Rohrabacher-Farr Amendment.  No sooner was this extension passed,  but Sessions wrote to Congress seeking its repeal.   As many readers know, the Amendment prohibits the Justice Department from using federal funds to prevent states from implementing their own medical marijuana laws.  It is, in essence, a victory for states’ rights, in the sense that they can decide whether to make medical marijuana legal, without fear of federal government interference.

Yesterday massroots.com, and today The Washington Post reported that in May, Sessions wrote to Congress stating that “it would be unwise for Congress to restrict the discretion of the Department [of Justice] to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long term uptick in violent crime.”

Of course, the “historic drug epidemic” to which Sessions refers has nothing to do with cannabis, but involves opiates, and, according to the Washington Post, a growing body of research shows that opiate overdoses decrease in states in which medical marijuana is legal.  Sessions also wrote that “[t]he Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous traffickers who threaten American lives.”  It is difficult to understand how Rohrabacher-Farr prevents the federal government from enforcing the Controlled Substances Act against those engaged in trafficking in drugs across state lines.

Sessions’ position is contrary to that of the President who expressed support for medical marijuana laws during his campaign.  However, over the past several months there have been a number of mixed signals from the Administration regarding enforcement of the federal prohibition on the possession and sale of cannabis.  These mixed signals have created tremendous uncertainty in all segments of the cannabis industry, but it is hard to believe that the Administration really intends to disrupt what has become a multi-billion dollar industry.

 

 

We recently reported on the inclusion of the Rohrabacher-Farr Amendment in the current Congressional budget deal.  The controversy over whether the Justice Department should be permitted to enforce federal laws in states where marijuana is legal for medical purposes only seemed settled, at least until the Consolidated Appropriations Act of 2017 expires in late September.  Due to the signing statement that President Trump issued when approving the Act, however, we may have blogged too soon. Continue Reading Reading the Signs: Is a Marijuana Crackdown in Our Future?

The appointment of Jeff Sessions as Attorney General created a great deal of uncertainty in the medical marijuana community.  Sessions has a long history of opposing the legalization of marijuana, whether for medical or recreational purposes.  “Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide,” Sessions said in an interview with radio talk show host Hugh Hewitt in March. Continue Reading See You in September: Rohrabacher-Farr Amendment in Budget Deal