One of the requirements to maintain legal immigration status in the United States is a “good moral character.” Good moral character means that a person does not have serious criminal issues and generally fulfills their obligations under the law. When state laws and federal laws contradict, it can negatively affect your legal status. An example of this is the use and possession of marijuana.
Marijuana and your legal status
Marijuana is legal for adults in 19 states and Washington DC; medical marijuana is legal in 38 states, including Washington DC. This may lead immigrants to believe that using marijuana as permitted by state law will not affect their immigration status. However, possession of marijuana is still illegal under federal law. In April 2019, USCIS amended its Policy Manual to emphasize that even “legal” conduct involving marijuana is a basis for severe immigration penalties. For example, admitting to having possessed marijuana can disqualify an applicant for cancellation of removal, cause any non-citizen, including a permanent resident, to be excluded at the border, and risk the eligibility for family immigration.
What’s legal in a state but illegally federally can cause much confusion regarding immigration. Immigration in the United States is chiefly regulated at the federal level under the rules established by the Immigration and Nationality Act. The federal government, which creates the system of laws that apply to all people within the United States, has the sole authority to grant visas, green cards, and citizenship. However, they face many challenges in enforcing immigration law and often seek assistance from state and local governments. Immigration laws are implemented differently in states than at the federal level and as a result, some state laws may contradict federal laws, affecting the federal government’s immigration duties.
What is state law?
State laws are adopted by the state legislature and signed into law by the state’s governor. The state laws apply to people within the state, whether they are residents or temporary visitors. State laws aim to grant additional rights to its residents that are not explicitly granted by federal law. All 50 of the United States have a legislative branch that enacts state statutes, an executive branch that carries out and enforces state laws, and a judicial branch that applies and interprets state laws.
States retain the power to make laws regarding issues not covered by federal legislation. State supreme courts are the final interpreters of state law unless their ruling affects federal law. State law generally has the final say in situations such as:
- Criminal matters
- Divorce and family matters
- Welfare, public assistance, or Medicaid matters
- Wills, inheritances, and estates
- Real estate and other property
- Business contracts
- Personal injuries such as from a car accident or medical malpractice
- Workers’ compensation for injuries at work
What is federal law?
Federal laws are bills passed in the House of Representatives and the Senate and have been signed by the president. If a presidential veto has been overridden, the bill becomes a law and is enforced by the federal government. Federal law is dictated by the United States Constitution, the official framework of the United States government, and pertains to the entire nation. Congress may pass legislation to enact new federal laws and amendments to the Constitution. The federal courts, including the US Supreme Court, upheld the federal law, including legislation regarding:
- Immigration law
- Bankruptcy law
- Social Security and Supplemental Security Income (SSI) laws
- Federal anti-discrimination and civil rights laws that protect against racial, age, gender, and disability discrimination
- Patent and copyright laws
- Federal criminal laws such as laws against tax fraud and the counterfeiting of money
The distinctions between state law and federal law
State law cannot abolish or limit the rights provided by the US Constitution. Alternatively, if state law provides a person more rights than federal law, state law is legally permitted to prevail within that state. For example, if the federal law does not allow same-sex marriage, but state law allows it, the state law stays since it gives its residents more civil rights. State law also prevails when it imposes more responsibility on its residents than federal law, such as wearing seat belts. Current federal law does not require back seat passengers to wear a seat belt. However, if a state requires it, all people within that state will be required to follow that law.
When there is an explicit conflict between state and federal law, federal law prevails. However, historically the federal government has not intervened every time state and federal law contradicts, especially in instances where the state law does not affect national security or international relations. An example of this is legalized prostitution in certain counties of Nevada. Prostitution is illegal according to US federal law, but under Nevada state law, counties with a population of fewer than 700,000 can legally have brothels. As of this date, the US government has not taken any action against Nevada for violating this federal law.
There are some important distinctions between the adoption and execution of federal and state laws [Source: Masterclass]:
- Creation: New federal laws must be approved by both houses of Congress and signed into law by the president. State laws are implemented by the state legislature and confirmed by the state governor.
- Hierarchy: The Supremacy Clause in Article VI of the Constitution states that federal law cannot be impeded or restricted by any state law.
- Extension of rights: If a particular state law grants additional rights to citizens that wouldn’t otherwise be given by federal law, state law wins out. The purpose of state law is to add to the list of citizens’ rights granted by federal law rather than limit them.
- Extra responsibilities: If a person fails to perform an obligation dictated by state law that doesn’t happen to be part of federal law, state law prevails.
The supremacy clause is part of the US Constitution and contains the “doctrine of pre-emption.” This clause determines that the federal government wins in the case of conflicting legislation, except in certain matters constitutionally left to the states.
Immigration law is determined by the US federal government and has consistently been upheld by the US Supreme Court. In addition, the Supreme Court has historically overruled state legislatures’ attempts to dictate immigration law. However, many states have passed legislation limiting undocumented immigrants’ access to public benefits, directing state and local police to check the legal residence status of arrestees, and other directives affecting immigrants. State lawmakers justify immigration-related state laws by citing a lack of federal enforcement, security concerns, and limited state resources to support an immigrant population.
When contradictions in state and federal law affect immigration
Arizona’s Senate Bill 1070, signed to law in 2010, is an example of a state’s attempt to regulate immigration and the federal government enforcing the supremacy clause. Arizona’s SB 1070, “Support our Law Enforcement and Safe Neighborhoods Act,” created new state immigration-related crimes related to trespassing, harboring, and transporting illegal immigrants, alien registration documents, employer sanctions, and human smuggling. The bill also broadened the authority of state and local law enforcement to enforce immigration laws. The law was based on four provisions:
- It is a state crime to reside in the United States without legal permission
- It is a state crime to work in the United States without legal permission
- Law enforcement officers are required to verify the legal status of all individuals who were arrested or detained
- Law enforcement officers are permitted to arrest individuals without a warrant based on probable cause of unlawful presence
The United States government sued the state of Arizona on the grounds that the four provisions preempted federal law and had international implications, especially in Mexico and Latin America. The case was tried at the US Supreme Court, resulting in three of the four provisions being ruled unconstitutional. The third provision was permitted to stand if there is “reasonable suspicion” that a person is in the United States illegally.
Many, but not all, state laws addressing immigration are preempted by federal law. Some states have passed laws similar to Arizona’s, allowing law enforcement to verify legal status. Many states also require using E-Verify to confirm employment eligibility and impose restrictions on immigrants receiving public benefits, such as food stamps and non-emergency medical care at state clinics. Although states can assist in immigration regulation and enforcement, the federal government has the legal power to enforce US immigration laws.
If you find yourself in a situation where your immigration status may be affected by a drug violation or an issue where state law contradicts federal law, your best course of action is to obtain advice from a reputable immigration lawyer. An immigration lawyer is knowledgeable in the most current aspects of the law and can provide the best options to avoid negative consequences that affect your immigration.
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