This week, tens of thousands of people will flock to the Nevada desert to attend the Burning Man festival—an annual international attraction, drawing visitors from all over the world looking to take in the desert environment, artistic expression, and spectacular costumes. Locally, however, the event is also known for being a venue where the drug use is as experimental as the performance art.

Among the attendees of Burning Man and similar events around the country are non-U.S. citizens who may be unaware of the potentially dire immigration consequences of engaging in drug-related activity, particularly while on federal land in a state where marijuana is legal. Using, possessing, purchasing, or selling a controlled substance may be grounds for inadmissibility, visa denial, or deportation, and evidence of a drug offense may prevent an applicant from obtaining a green card or citizenship. Conflicts between state and federal law have created confusion over whether marijuana is still considered an illegal drug. There’s a misperception that marijuana use is no longer prosecuted, now that a majority of states have legalized medicinal or recreational marijuana. Thirty-three states1 have legalized medical marijuana, and 11 states2 and the District of Columbia have legalized adult recreational marijuana.

Federal law is a different story. Under federal law, marijuana is classified on par with heroin and LSD, as a Schedule I drug. In the immigration context, it’s important to understand that individuals may be deemed to have violated federal drug laws even if they have not been arrested, charged or convicted. For example, an individual who admits to having worked for a cannabis start-up in Colorado or to using marijuana at home in Arizona to treat the effects of chemotherapy may have admitted to conduct that constitutes a violation of federal law, potentially triggering immigration consequences. This is true even if the conduct was legal under state laws.

The current administration has signaled its lack of tolerance for drug activity by immigrants. In June 2017, U.S. Citizenship and Immigration Services began asking green card applicants if they have violated state, federal or foreign drug laws at any time. In 2018, Attorney General Jeff Sessions revoked Obama-era policy memos that discouraged federal prosecutors from prosecuting marijuana violations that were legal under state laws. In April of this year, USCIS clarified that marijuana-related violations will generally prevent citizenship applicants from proving they have “good moral character,” a requirement to naturalize.

Noncitizens should be aware of the immigration consequences of drug-related activity. Carrying a medical cannabis card, keeping drug paraphernalia, or posting drug-related photos or discussions on publicly available social media could open up a line of questioning from law enforcement if found. While it is not necessary to be on federal land to violate federal law, Burning Man takes place on federal land and is policed by federal Bureau of Land Management officers, increasing chances of encountering federal law enforcement.

As Burners ignite an effigy of “The Man” on the last Saturday of the event, foreign nationals in the crowd would do well to remember that drug activity could sacrifice their immigration status.

Ryan Harris is an Associate in the San Francisco office of Berry Appleman & Leiden LLP.

Melanie Beckwith is a Staff Attorney in the San Francisco office of Berry Appleman & Leiden LLP.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

1 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia.

2 Alaska, California, Colorado, Illinois (effective Jan. 1, 2020), Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington.