“You’re not getting into the United States today…” “I can ban you for life, if I want to…” “I don’t care what your lawyer said, I decide who is admitted to the United States of America”
-Unofficial anecdotal declarations credited to U.S. Customs and Border Protection officers.
Canada is preparing for big changes next month when adult recreational cannabis will become legal nation-wide. What won’t change, however, is the cannabis policy of Canada’s biggest neighbor, trading partner, and closest ally, The United States of America (U.S.). Under U.S. Federal law, cannabis use and possession is illegal and is considered a Schedule 1 controlled substance offense under the US Controlled Substances Act of 1970[i]. Under U.S. Immigration law, anyone who has violated a law or regulation of a U.S. state, U.S. federal law, or the law of foreign country relating to a controlled substance is inadmissible to the U.S. per Title 8 of the United States Code (USC) § 1182(a)(2)(A)(i)(II).
One consistency that will remain is that admissibility to the U.S. is always determined by the discretion of U.S. Customs and Border Protection (CBP) officers. While Canada’s new laws regarding cannabis shift the means by which an individual can be determined inadmissible to the U.S., the beacon throughout is the reviewing officer. This is not a new phenomenon, as U.S. Customs and Border Protection (CBP) have always been empowered by the mission: to detect and prevent the illegal entry of aliens into the United States.[ii] We highlight that the discretionary authority has been reinforced by the specific Executive Order of January 25, 2017, which further empowered officers of both U.S. Immigration and Customs Enforcement (ICE) and CBP. This Executive Order strengthened the independent authority of the officers at the border, and that increased authority applies directly to this discussion of Canada’s legalization of cannabis consumption and association.
With that aspect in focus, the understanding of the changes presented by Canada’s legalization of cannabis is more appropriately discussed. The authoritative declarations provided atop illustrate that a CBP officer’s authority still holds court. Most importantly, we must recognize that this tumultuous issue continues to come into focus, legally and administratively, for both countries. As a result, we can’t offer a magical legal solution or regulatory loopholes, instead we must apply and modify the previous approaches with the only predictable consistency being the overarching authority of the reviewing officer. The following are the new and old issues that the forthcoming legalization present along with potential solutions and strategies.
CRIMINAL CHARGES RELATED TO CANNABIS BEFORE CANADIAN LEGALIZATION
There is no change to U.S. immigration policy as it relates to the above-referenced 8 USC § 1182(a)(2)(A)(i)(II) and under the Immigration and National Act (INA) §212(a)(2)(A)(i)(II):
any alien 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…is inadmissible.
Previous criminal convictions or charges related to cannabis render a person inadmissible to the U.S., irrespective of the Canadian cannabis laws at the time of proposed entry to the U.S. As discussed supra, if there is a historical finding of guilt, which involves any admission or any legal penalty related to a controlled substance charge, during the time cannabis was illegal in Canada, the individual would be inadmissible. Canada and the U.S. share extensive criminal records information. Therefore, previous convictions may be accessed by both Canadian and U.S. officials at any time. Note that pardons and records suspensions are not recognized by U.S. authorities. Therefore, a conviction for which a pardon has been granted in Canada would still render a person inadmissible to the U.S. Dismissed or diverted charges may also have US immigration consequences.
The aspect to be explored, however, is admission of usage after legalization on October 17, 2018. In that instance, the core of the above-quoted standard of violating a law or regulation would no longer be applicable, as there would no longer be a foreign law to break in this instance. Since the admission of legal use of cannabis is not a crime in Canada, the above standards are not met, and the applicant would not be criminally inadmissible. Alongside the statutory discussion, we can also find support for that conclusion as it relates to admission of usage through Matter of K.[iii] which requires that an admission of a criminal act adhere to three requirements:
- Conduct must constitute the elements of the crime;
- Must be provided with the definition and essential elements of the offense prior to admission, i.e. knowledge it was a crime, and;
- Admission must be voluntary
In the instance of cannabis use being legal in Canada, the necessary elements for admission are not applicable. Inadmissibility due to a criminal violation would not apply without a qualified and acknowledged violation by the border applicant. So if it is no longer a criminal issue, how would an individual be deemed inadmissible? The next sections present alternative means available to CBP to render an applicant inadmissible.
SUBSTANCE ABUSE, MENTAL HEALTH, AND REFERRAL TO A PANEL PHYSICIAN
Following the legalization of cannabis in Canada, and a lack of any possible criminal charges related to cannabis consumption in Canada, CBP also reserves the right to ask questions related to use of cannabis in exploring the potential that the application maintains a dependency on cannabis or any other drug or alcohol. CBP is permitted to make an assessment based upon an applicant acknowledging previous use of drugs or clear evidence of dependency on drugs or alcohol. The general rubric for this inquiry falls under health concerns, either that the individual has compromised their mental health as a result of usage or has an addiction to drugs. Both, under INA § 212(a)(1)(A)(iii) and INA § 212(a)(1)(A)(iv), respectively.
We propose that without a qualified criminal conviction, CBP will be prone to exercise this option and make it an issue of health rather than criminality. In common circumstances, as it is a health issue, the applicant is denied entry and told to visit a panel physician. CBP designates the panel physicians and the evaluation must be conducted by these authorized panel physicians. The panel physician also commonly refers patients out to other physicians, with all costs borne by the applicant. Once this is completed, the applicant has it forwarded to CBP, and they may again apply for admission. The cost, time, and effort are obviously the CBP’s most effective means to at least delay, if not ultimately deny entry. Ability to enter the U.S. would be determined by the assessment of the panel physician, i.e. the applicant does or does not demonstrate a dependency on cannabis or mental health issues associated with admitted cannabis usage.
WORKING, INVESTING, AND BUSINESS DEALING WITH THE CANNABIS INDUSTRY
This should be considered the most predatory and most damning aspect of the legalization of the cannabis industry in Canada. There is a distinct difference between possession/usage and the much more serious assessment as a trafficker of drugs. Inadmissibility based on a CBP officer concluding the applicant is a trafficker of illegal drugs is far more severe and does not require or involve consumption of cannabis.
The imminent legalization of the cannabis in Canada has prompted heavy investment from the Canadian business community in the cannabis industry. Unfortunately, legalization does not relieve the potential inadmissibility to the U.S. for Canadians involved and working in the cannabis industry. This may also apply to applicants who have invested in the industry or work with companies in the cannabis industry. All of these association could be potential grounds for an assessment that the applicant is inadmissible to the U.S. because they have been deemed a trafficker of illegal drugs.
INA § 212(A)(2)(C) and its discussion of trafficking is best described in the Department of State’s interpretation of the INA through Chapter 9 of the Foreign Affairs Manual FAM § 302.4-3. It explains:
Any alien who the consular officer or DHS knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemicals as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others, in the illicit trafficking in any controlled or listed substance or chemicals, or endeavored to do so is ineligible under INA 212(a)(2)(C)(i)… if you have “reason to believe” that the alien is or has been engaged in trafficking, the standard of proof is met and you should make a finding of ineligibility.
“Reason to believe” might be established by a conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports. The essence of the standard is that the consular officer must have more than a mere suspicion; there must exist a probability, supported by evidence that the alien is or has been engaged in trafficking. You are required to assess independently evidence relating to a finding of ineligibility…this evidence might include conclusions of other evaluators. Such conclusions, no matter how trustworthy, cannot alone support a finding of inadmissibility; however, they might be relevant to forming an overall “reason to believe.”
The vulnerability is clear. Any association with the burgeoning cannabis industry could be grounds to find a “reason to believe.” Moreover, this potentially affects family members as well, spouse, son, or daughter, who receive financial or any other benefit from a deemed “illicit trafficker”[i] can also be deemed inadmissible.
The resources that a CBP officer may use to determine a “reason to believe,” are the common online outlets available to the general public. Internet search results, social media profiles such as LinkedIn, company websites and biographies of applicants for admission to the US can be examined by CBP and can lead to a finding of inadmissibility if the information leads the officer to believe the traveler has been involved in the furtherance of the cannabis industry.
In addition, U.S. border officers have the authority to search an individual’s personal belongings, including electronic and mobile devices, per CBP Directive No. 3340-049A. They can request passwords and review the content of the electronic devices. The broad discretion to interpret information contained on devices may be used as evidence that a person intends to commit a criminal act, including the use, production or distribution of cannabis. Materials on personal electronic devices such as photos, company documents, pitch decks, etc. can be used to affirm a person’s involvement in the cannabis industry. A CBP officer may enter in key word searches in a person’s mobile device or laptop computer that reveals a reasonable association with the cannabis industry. The key point is to remember that only a “reason to believe” is needed to make such an assertion.
APPROACHES AND STRATEGIES
As demonstrated in the above discussion, Canada’s imminent legalization of cannabis will create significant challenges to Canadians traveling to the U.S., with some of those challenges already realized. Our suggested approaches and strategies per the introductory discussion that the reviewing officer’s discretion is the ultimate determining factor for entry to the U.S. An officer has the capacity to both initiate the discussion of cannabis and the applicant’s involvement, as well as ignore it completely. That is why the proposal of solutions and strategies has to be firmly focused on the interaction between the officer and applicant.
First and foremost, an applicant should never lie in any circumstance. The applicant is under a strict obligation to tell the truth, and any misrepresentation may bear worse consequences. The second factor to be mindful of is to answer the questions asked and be direct in response. There is no need for disclosures that aren’t relevant to answering the questions asked by the officer.
Also, an important distinction is to know what visitors are permitted to do within the U.S. Visitor for Pleasure is relatively straightforward, it is for vacationing in the U.S. Comparatively, permissible U.S. Business Visitor activities involve conferences, industry events, business meeting etc. An applicant should be able to identify the specifics related to their Business Visitor entry, and if the association with the cannabis industry is identified, it is important to discuss the matter in the terms relevant to applicant’s actual association. If an applicant can discuss the matter with the officer and identify the purpose for entry is not to facilitate any type of international drug trafficking, despite involvement in some capacity in Canada, that may allow the officer to make a favorable conclusion that they are not involved in trafficking drugs. The volatility and nebulous nature of these matters make hard fast rules and conclusions impossible, and as a result, so much of this is determined by the interaction between officer and applicant. This allows the applicant to present their activities and background in as positive a light as possible.
Speaking to the purpose of entry, those entering under work authorized classifications would be under more scrutiny to analyze whether their proposed work in the U.S. involves the cannabis industry in any manner. Cross-border work or involvement in U.S.-based cannabis operations, potentially in states where consumption is legal, would be a difficult situation from any standpoint. We cannot offer any qualified suggestions in that circumstance, as this would involve the clear definition of trafficking, as it would involve working in the cannabis industry across international borders.
Those are the nuanced aspects, but as discussed, one area that is not nuanced is any violation committed prior to the legalization of cannabis. If the applicant has been deemed inadmissible due to a prior criminal record for a cannabis offence, a waiver application is a possible solution, though such an application can take up to six to twelve months to adjudicate. As discussed supra, subsequent to the legalization the basis for denying entry will shift from criminal inadmissibility to medical inadmissibility. Any admission by an applicant of cannabis use, could lead to a denial of entry due to a “reasonable suspicion by the officer” that the applicant may have an addiction to drugs or alcohol. That situation would require clearance from a panel physician in order to gain entry.
The basic reminders, obviously, are never travel with cannabis, cannabis paraphernalia, medical marijuana health cards, etc. Also take steps to minimize an online presence associated with cannabis and do not travel with mobile or electronic devices that contain sensitive information that may reveal an association with the cannabis industry. One standard to keep in mind for electronic devices is to keep them offline, in “airplane mode,” when approaching the border. Per CBP Directive No. 3340-049A, an officer is not permitted to update and pull materials from the web on the actual device.
As discussed, this is an area that is developing, and leading up to October 17, 2018 there will be further developments, and further anecdotes from the border. Subsequent to legalization, we can expect even more incidents and stories, both real and hyperbolic, but the focus for any applicant is their circumstances and their individual dealing with the officer before them at the border.
Authorities from the U.S. and Canada are currently working together to reach some sort of resolution that would prevent many Canadians from becoming inadmissible to the US for activities that are or will be legal in Canada. We are confident that the sheer volume of travel between the U.S. and Canada, and the realities of the differing cannabis policies will ultimately bring some modification to hard stances and the dire warnings from U.S. officials that currently fill newspaper headlines. However, for the time being, all travelers should be aware of the cross border consequences of their involvement with cannabis.
Green and Spiegel is actively involved in these developments, and we will continue to publish and comment on these matters. Please feel free contact us with any questions or concerns.
[1] Title 21 United States Code (USC) § 812(c)
[1] https://www.cbp.gov/faqs/what-border-patrol-and-what-its-mission
[1] 7I&N Dec. 594, 598 (BIA 1957)
[1] INA 212(a)(2)(C)(ii).
