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In response to a ruling in June by the United States Court of Appeals for the Ninth Circuit affirming a lower court summary judgment denying Maria Elena Reimers the right to become a naturalized citizen, a lawyer for the Washington state dispensary owner says that her client has given the green light to appeal the case to the United States Supreme Court.
As we previously reported, Reimers – a 45-year-old mother of two, with permanent resident status in the United States and no criminal record – applied for naturalization in 2017, but in 2018, the United States Citizenship and Immigration Services (USCIS) denied her application, finding her co-ownership in Ephrata-based Cannarail Station made her an “illicit trafficker of a controlled substance.”
Reimers’ lawyer, Alycia Moss, recently merged her firm, Moss Immigration Law, with Boise, Hawley Troxell, a Idaho-based law firm with 100 attorneys and a staff of 200 staff. “I did that because I was working too much and I’m trying to get more administrative support,” she told Cannabis Business Executive, “which is good timing for this case, because my client has agreed to go ahead and petition the Supreme Court for certiorari, which means we’re asking the Court to take the case.”
Moss explained that she had enlisted a cannabis-experienced lawyer as an expert witness in the case, only to be thwarted. “She was an expert in Washington state cannabis law,” she said, “and when cannabis became legal she was part of that whole statutory structure. She wasn’t actually tasked with creating it, but she was a part of it from the beginning, so we have her as an expert, but we couldn’t even get her on the stand because the district judge would not give us what we consider a mandatory hearing in court.
“We did submit an affidavit from her with our initial complaint filings,” continued Moss. “We wanted what is called a 1421C hearing, which is one of the statutes for naturalization. We didn’t get it because of the summary judgment, but we believe it’s mandatory in the naturalization context, and that is one of the reasons we’re asking for certiorari with the Supreme Court, but it’s not the only reason. Bigger reasons are the fairness issue under the Equal Protection Clause, and we’re also asking the Supreme Court to revisit their Raich case.”
The primary holding of Gonzales v. Raich (2005) was that state laws permitting the medical use of marijuana do not prevent Congress from prohibiting its use for any purpose in those states under the Commerce Clause. As such, noted Moss, “We’re basically asking the Supreme Court to overrule themselves to say that that case is not good law anymore.”
With respect to 8 USC 1421, the relevant section states:
(c) Judicial review
A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.
Last but not least, the Equal Protection Clause of the 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [bold added]
The Ninth Circuit did ostensibly address Equal Protection in its order, but not to Moss’s satisfaction. “We believe they gave that argument very short shrift,” she said. “They didn’t even want to talk about it. I had to push the equal protection in the couple of minutes of my rebuttal, and they cut me off anyway because I was going overtime. So, I think they gave that very short shrift, and they just basically went with the district court rather than understanding or even really approaching the interplay of the Immigration and Nationality Act (INA) with the Controlled Substances Act (CSA).
“That is our main argument,” she elaborated. “The Ninth Circuit didn’t even broach in its opinion that there is no way to have the denial of a naturalization in the context of cannabis without applying the Controlled Substance Act. Our main argument is that you cannot separate the Controlled Substances Act from the INA. It is not the INA that’s been applied; it is the Controlled Substances Act that is being applied. That has been applied to US citizens as well as non-citizens, and the Ninth Circuit didn’t approach that argument at all. We made that argument in our briefs, and I tried to make it an oral arguments, but they didn’t really want to talk about it.”
Will they ask SCOTUS to kick it back to the lower court for a full hearing, or for more than that? “First, we are going to ask them to say that the hearing was mandatory,” replied Moss, “but we will also communicate our Commerce Clause and Equal Protection arguments, and if they don’t want to touch Equal Protection and the Commerce Clause, to remand it back down so we at least have our full hearing.”
Minus competing rulings from different circuits, what controversy does the Court need to consider? Was there something compelling Moss thought they may want to address?
“Yes,” she replied. “The chaotic state of marijuana law, and this situation where the federal government says, ‘We’re going to say it’s illegal, but we’re not going to come after you to prosecute you.’ Congress is even saying, ‘We’re not going to fund prosecution of this, but we’re also going to say you can’t take the deductions in the IRS, you can’t have a federal bank account that’s ensured, and you can’t get citizenship. But we’re going to allow you to legally do that because there’s a lot of federal and state revenue based on that.’”
As a result, she added, “It’s chaotic, and nobody knows what’s okay, and what’s not okay.” Certain cases exemplify the issue, she added. “I don’t know if you’ve read Standing Akimbo out of the Tenth Circuit, but even though the US Supreme Court denied certiorari in that case, Justice Thomas wrote a two-page dissent about this specific issue, our issue, saying the government can’t have this half in-half out stance. It’s not fair. It’s chaotic. It’s ridiculous. It’s irrational. I’m summarizing from my perspective, but it’s a really great two pager, which gives me one vote at least on the Court for something like this. They want to settle this. They don’t want this chaos.”
In that dissent, Thomas wrote in part, “Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.”
Though unrelated to immigration, I wondered if the tension between gun rights and cannabis, which is also playing out at the circuit level, might play into the chaos and confusion at the heart of the cannabis question?
“Yes, exactly,” said Moss. “It’s kind of like building a mountain. That’s why I don’t say that a case specific is going to help us. It’s a mountain that we have to build to show how chaotic and ridiculous this is, and it has all these things – guns, taxes, citizenship, even accountants for marijuana, or a janitor in a marijuana business – that can be held to a different standard. It is perfect for the Supreme Court to take because the average person can’t understand what’s going on.
“And the federal government is responsible for this,” she added. “They created this chaotic system, and they need to either legalize it or deal with the chaos. And right now, my client can’t wait for legalization. She needs her citizenship because she can’t vote, and she can’t participate in American society like she would be able to if she had her citizenship. She can’t sponsor her mom to get a green card without being a citizen, and her mom is getting old, and she needs to take care of her. I mean, there’s so much that is personal for my client to be wrapped up in this chaos that the federal government created.”
I still wondered if the fact that there is no conflict at the circuit level because the law seems pretty clear presents an obstacle to SCOTUS taking the case.
“It is definitely an obstacle,” said Moss, “but I would argue it’s not clear. I think that the circuit courts might try to make it seem clear, but you have cases where US citizens are subject to the Immigration and Nationality Act. For example, there are Customs issues where they’re subject to things that are in the INA. But the INA is not what has been applied to my client for this denial of naturalization. It’s the CSA that has been applied to her for the punishment, and it can’t happen without the CSA. What the INA did is rather than put the language from the CSA in the INA and say, ‘If you do this or this conduct, then you can’t get naturalization,’ what they did is just refer to the CSA, and they don’t even use the language. They say, ‘If you do conduct under the CSA, you can’t get naturalization.’
“That point to me is the wedge that makes it unclear, and alternatively clear, that the CSA is being applied, and it’s not just the INA being applied. And that’s the shiny hook I’m trying to get to for the US Supreme Court, saying that the circuit courts all think it’s clear, but it’s not. It’s the way the structure of the statute is really about the CSA and not the INA, and the CSA is telling non-citizens that they’re drug traffickers and citizens that they’re not, and the reason the CSA is telling citizens they are not, is because Congress won’t fund it and the federal government has policies not to enforce it.”
What about the idea that if you get into something like this, the courts will look at it and go, ‘You knew what you were doing. If you’re not a citizen, maybe you shouldn’t open a cannabis dispensary?’
“I can see the government arguing that everybody knew it was federally illegal,” allowed Moss. “But one, the feds are allowing it, and two, my client didn’t really understand. I have a lot of evidence from the administrative hearings that she was at that she didn’t understand it. She came to me after the denial, so I had to go back and see what was going on. I watched the video of their taped hearing, and when the officer said, ‘Control Substance Ac,’ she had to ask, ‘What are you saying, can you spell that?’ She had so much trouble understanding as a non-native English speaker that it’s really about coming back to who can figure out what’s okay and what’s not okay. There’s no way that an average person without a legal education could understand the rules as they are right now in the cannabis industry.”
The estimated timeline for the case is dependent upon several factors. “Our deadline [to file] is October 26,” said Moss, “and based on the way the Supreme Court works, we should know in January, February, maybe March at the latest, whether they accept it or not. Once we know they have accepted it, we have 45 days for our opening brief, but the government always will ask for an extension, so considering their extensions, hopefully we’ll have oral arguments in 2025.”
Of course, the odds are against certiorari being granted, but hope springs eternal. “I know only 4 percent of the cases are accepted,” said Moss, “but we’re going to try to make this really shiny for the Supreme Court, so they say, ‘My goodness, we can’t miss that shiny object. Let’s take the court case.’
“At a minimum, we’d like to get back down to have our day of court,”, she added, “but nationally, I really feel like it would be better to actually address these big issues like the Commerce Clause. That is really the elephant in the room. Is this interstate commerce or intrastate commerce? Which is it?”
Moss also had some advice for people in a similar situation as her client. “If a client had come to me before they filed for naturalization, and I knew what they were doing in their business, I would say, ‘There is a high risk – well over 90 percent – that the application is going to be denied in disclosing the business that you’re in,” said Moss. “Now, it’s unfair, and it’s not right that they’re going to do this, so you have to know that and where you’re at risk. If you are going to take the risk, then you have to be ready for litigation, because this is a subject that can only be solved by the US Supreme Court. And so, if you’re ready and you think that you have the stamina to withstand this and the financial ability to do this, then I’d be happy to assist you. However, knowing that it’s going to be denied and there’s going to be a lot of litigation ahead, and only one court can really decide this, if you’re not ready for that, then I would say, ‘Do not apply for naturalization and just keep renewing your green card.’”
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