Sending Office: Honorable Joe Neguse
Sent By:
Miya.Patel@mail.house.gov

Sign a bipartisan letter to the Attorney General and Acting Secretary of Homeland Security opposing federal meddling in state cannabis industry workers’ right to naturalize

Deadline: COB Monday, May 20

Current signers: Armstrong*, Jeffries*, Neguse*, Lee, Blumenauer, Young, Holmes Norton, Pingree, Cohen, Swalwell, Watson Coleman

Endorsements: Immigrant Legal Resource Center, NORML, National Cannabis Industry Association, Minority Cannabis Business Association, Americans for Safe Access, Marijuana Policy Project, Global Alliance for Cannabis Commerce, Veterans Cannabis Coalition,
Drug Policy Alliance

 

Dear Colleague,

Today, more than 30 states and territories have chosen to legalize cannabis either recreationally or medicinally, representing the views of over two-thirds of Americans. Moreover, this has translated to over 211,000 jobs in these states and territories,
with 64,000 of those jobs added in 2018 alone.[1] This is a growing industry and will only continue to add employment opportunities for Americans in these
states and territories. While we should be encouraging all Americans to participate in legal employment, recently we have seen a growing number of examples of cannabis employees penalized for their participation in the industry. This is particularly the case
for legal permanent residents who make up part of the 211,000 cannabis workers but are being denied their ability to naturalize because of it. As states with legal cannabis seek to grow and regulate their industry, we should be supporting these employment
opportunities instead of hampering a growing job producer due to inconsistent federal laws.

Given this, we strongly oppose the most recent United States Citizenship and Immigration Services (“USCIS”) guidance reaffirming cannabis as a Schedule One substance that serves as a bar for the “good moral character” standard required of individuals seeking
to naturalize. This guidance only exemplifies the inconsistencies in our nation as it relates to cannabis and an individual’s legal employment in the industry barring him or her in future immigration proceedings.

Our constitutional framework has afforded states to differ on many matters of public policy, including cannabis. As a result, that same framework should be extended to the protection of legal permanent residents who have legally been employed in the cannabis
industry and seek to fulfill their American dream of becoming a U.S. citizen.

Please join us in this letter to the Attorney General and Acting Secretary of Homeland Security urging that they retract the current policy and replace it with a policy consistent with the Cole Memorandum in which the “good moral character” standard
respects settled state expectations on cannabis.

To sign on please click here. For questions please contact Miya Patel at miya.patel@mail.house.gov (Rep. Neguse), Casey Fitzpatrick at Casey.Fitzpatrick@mail.house.gov (Rep. 
Armstrong), or Zoe Oreck at Zoe.Oreck@mail.house.gov(Rep. Jeffries).
The deadline to sign-on is COB Monday, May 20.

 

Sincerely,

Joe Neguse                                          Kelly Armstrong                                 Hakeem Jeffries

Member of Congress                          Member of Congress                          Member of Congress

 

***

May XX. 2019

The Honorable William Barr                          The Honorable Kevin K. McAleenan            

U.S. Attorney General                                   Acting Secretary of Homeland Security             

U.S. Department of Justice                           Department of Homeland Security           

950 Pennsylvania Ave N.W.                          245 Murray Lane SW          

Washington, DC 20201                                 Washington, DC 20528-0075         

 

Dear Attorney General Barr and Acting Secretary McAleenan:

We write to express our support for the many legal permanent residents who seek to exercise their legal right to become naturalized U.S. citizens. We respectfully disagree with the recent guidance issued by the U.S. Department of Homeland Security (“DHS”)
formalizing a bar to naturalization for legal permanent residents who have been employed in the legal cannabis industry, in accordance with state law, and wish to see rescission of this policy and – at the very minimum – clarification on the process as it
stands.

As you know, over 30 states and the District of Columbia have legalized cannabis for medical or recreational purposes. Hence, implementing a policy that targets naturalization applicants based solely on their lawful employment in this industry creates conflicts
of law with over two-thirds of American states and territories. Moreover, it is our understanding that during his confirmation hearings before the U.S. Senate Judiciary Committee, Attorney General Barr made clear that the U.S. Department of Justice (“DOJ”),
under his potential leadership, would “not go after companies that have relied on the Cole Memorandum” nor would he “upset settled expectations and reliant interests” related to the same. Given this statement and pertinent state laws, we ask that both DOJ
and DHS act to rectify this policy as it relates to naturalization and disruption to a reliant state interest as referenced by Attorney General Barr.

The DHS guidance referenced above creates significant ambiguity for both individuals and their attorneys. First, the guidance states that “depending on the specific facts of the case, possession or employment in the marijuana industry, whether established
by a conviction or an admission by the applicant, may preclude a finding of good moral character for the applicant….” The guidance states further that “an admission must meet the long-held requirements for a valid ‘admission’ of an offense.” These long-held
requirements were enumerated in Matter of K, (explicitly referenced by your guidance) in which the following three requirements must be met for a valid “admission” of an offense:

  1. The officer must provide the applicant the text of the specific law from the jurisdiction where the offense was committed;
  1. The officer must provide an explanation of the offense and its essential elements in “ordinary” language; and
  1. The applicant must voluntarily admit to having committed the elements of the offense under oath.

As we understand it, individuals, such as the ones whose stories of naturalization rejection have recently been publicized along with so many others, arguably were not provided the elements of potential crimes for which they may be indicted, including, for
example, possession. In addition to denying their application for citizenship, U.S. Citizenship and Immigration Services (“USCIS”) compelled many of these individuals to sign affidavits confirming their employment in the cannabis industry, subjecting them
to potential federal prosecution and possible deportation. Given these facts, these individuals ostensibly are not given the opportunity to defend themselves as to why their conduct did not qualify as a crime or meet the elements of the alleged crime at issue.

Further, under the DHS guidance, “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.” Yet,
it is well established that the U.S. naturalization process is a non-discretionary process: if a determination of good moral character is not denied and the person meets other requirements, there is no other discretionary tool an agency may use to deny one’s
application, unlike in other immigration applications for relief. While an officer may decide that the person has not affirmatively established that they are of good moral character, they must first apply a balancing test that considers both negative and positive
factors.

Given the foregoing, it bears mentioning that the DHS guidance – which requires long held admission standards be upheld – arguably is not being implemented correctly by USCIS. Moreover, the guidance itself is fatally flawed, as it provides no cogent basis
for the agency’s apparent conclusion that lawful employment in a state-licensed industry could be treated as a negative factor in establishing good moral character and places a negative burden upon the individuals against a non-existent discretionary element. 

 Therefore, we urgently request that DHS and DOJ act on the following:

  1. retract the current policy and replace it with a policy consistent with the Cole Memorandum in which the “good moral character” standard respects settled state expectations on cannabis;
  1. If not, at the minimum describe how the standards for taking an “admission” will be implemented, and what will be done in cases where they were not implemented; and
  1. Provide additional guidance and the departments’ legal basis for construing employment in the lawful cannabis industry as a negative factor for establishing good moral character in the naturalization process, especially given that employees have
    no reason to know that they are in technical violation of an unenforced Federal law. 

We trust that you will expeditiously address the requests above, as any failure to do so will only further exacerbate these conflicts between federal and state law and continue to disrupt settled expectations in over 30 states and territories as it relates
to immigration policy. We look forward to hearing from you on additional guidance to better protect individuals such as the ones discussed in this letter.

Sincerely,

 

 

 


[1]  Leafly, Special Report: Cannabis Jobs Count, https://d3atagt0rnqk7k.cloudfront.net/wp-content/uploads/2019/03/01141121/CANNABIS-JOBS-REPORT-FINAL-2.27.191.pdf March
2019.

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