The remaining uncertainty of U.S. immigration laws five months after legalizing recreational cannabis

 

On October 17, 2018, the Cannabis Act[1] went into effect and legalized the recreational use of marijuana in Canada, shaping a strict legal framework for controlling the production, distribution, sale and possession of cannabis across the country.

On both sides of the border, the new law has created uncertainty. In the U.S., even though legal in some states, cannabis remains firmly planted in and prohibited as a Schedule I controlled substance under federal law[2]. Since the border falls under exclusive federal jurisdiction, federal laws are enforced.

Each day, 300,000 Canadians cross the Canada-U.S. border[3]. In a 2015 poll, 18 per cent of Canadians surveyed said they had used marijuana in the previous year[4], which works out to about 5.4 million people.

Canada has itself issued a recent warning[5], stating that:

“previous use of cannabis, or any substance prohibited by the U.S. federal laws, could mean that you are denied entry to the U.S. Involvement in the legal cannabis industry in Canada could also result in your being denied entry”.

You may be denied entry for the day or found inadmissible. Inadmissibility attaches for life.

 

How could you personally be affected?

 

Prior use. Thousands of Canadians have been denied entry to the U.S., while others have been banned simply for admitting they’ve smoked a joint once in their lives. Admitting to using cannabis constitutes a crime related to a controlled substance in the U.S. This is sufficient for you to be found inadmissible or denied entry to the U.S.[6]. Permanent residents and other foreign nationals are equally exposed to findings of inadmissibility.

U.S. Customs and Border Protection (CBP) officers are not planning to go out of their way to interrogate every individual crossing the border about marijuana use. However, should it come up and should the answer be yes, the wisest thing to do would be to remain silent. You are not obliged to say anything at the border. The worst thing that could happen is to be turned back for the day and/or flagged, but it will unlikely result in a permanent entry ban.

Travelers must keep in mind that lying to a CBP officer can result in yet another bar to admission to the U.S.[7]

Drug abusers and addicts. A provision in U.S. immigration law[8] which bars “drug abusers” on medical grounds applies even if you used marijuana in another country legally.

CBP officials might then bar Canadians from the U.S. for legal marijuana use in Canada if a border officer decides you are likely to consume it in the United States.

Privacy risks. The Office of the Privacy Commissioner (OPC) is planning to issue guidance for buyers and sellers of legal cannabis amid ongoing concern about potential fallout if transactions become known by third parties.

Online cannabis sellers need to make it plain to buyers that their information may be stored in a foreign country, and that it may be accessible to law enforcement and national security authorities of that jurisdiction[9]. In short, a Canadian online cannabis seller that outsources the storage of personal information to a U.S. firm cannot prevent your personal information from being lawfully accessed by U.S. authorities[10].

Online sellers collect personal information such as name, date of birth, home address, credit card number, purchase history and email address. Cannabis being illegal in most jurisdictions outside of Canada, the personal information of cannabis users is very sensitive. Credit card data can be stored outside Canada and in the United States as the privacy policies of all five of the big banks warn customers. So, if the U.S. wanted to start assembling a list of Canadian marijuana users after legalization, they certainly could have a way of doing so.

In Québec, cannabis purchases are entered by the individual Société québécoise du cannabis (SQDC) store name. An example entry is: SQDC77021 STE-CATHER MONTR. That makes them clearly identifiable. Nova Scotia solved the problem splendidly by entering purchases as NSLC (Nova Scotia Liquor Commission), which pretty much makes cannabis purchases invisible[11].

If armed with credit card data that clearly shows a cannabis purchase, a U.S. border officer could quickly put you in an impossible position — admit to marijuana use and be banned for that or deny it and be banned for lying. The concern is not solely with regard to our U.S. counterparts. In October of 2018, an individual breached Canada Post’s delivery tracking tool to access the postal codes and names customers who accepted delivery of marijuana[12].

If you’re able to buy cannabis in person, a debit card is a far better option than a credit card since debit card data is processed and stored in Canada. Cash remains better from a privacy angle.

 

Higher risks for Canadians involved in the cannabis industry. Cannabis-industry professionals or investors with ties to the American cannabis industry are at a higher risk of complications due to their proximity to the plant.

 

Additionally, keep in mind that the “border search exception”, which allows search and seizure without probable cause, applies at the border[13]. CBP officers may search your wallet (for business cards) and review the contents of your laptop or cell phone, for example. A safe bet is to travel with a clean phone and laptop or storing your cannabis-related documents in cloud-based software, which authorities aren’t allowed to search[14]. However, this must be taken with a grain of salt because the CBP’s policy on border searches of electronic devices is drafted in vague language which could allow for potential loopholes.

If you are employed in the marijuana industry in a foreign country in any capacity, you could be denied admission based on “reasonable belief” that you are an illicit trafficker (or a knowing aider, abettor, assister, conspirator, or colluder) of cannabis (a controlled substance)[15]. Drug trafficking includes simple “involvement” in the sale and distribution of illegal drugs. Therefore, inadmissibility to the United States may be based on the fact that an individual simply works in the cannabis industry abroad, including Canada, where it is now legal. The spouse, son, or daughter of such a person is also inadmissible under this ground of inadmissibility[16].

U.S. officials say Canadians working in the cannabis industry “will generally be admissible” if they’re simply vacationing in the United States but may be barred if they are coming for any marijuana-related reason[17], which could include conferences, investment meetings or visiting a colleague’s store south of the border, even in U.S. states where recreational cannabis is legal.

In November of 2018, a Canadian investor travelling to Las Vegas, Nevada, has been issued a lifetime entry ban to the United States because he planned to attend a prominent cannabis conference and tour a new cannabis facility[18]. The Marijuana Business Conference & Expo — one of the largest gatherings of cannabis industry players — attracted close to 25,000 investors, entrepreneurs, lenders, lobbyists and executives of major U.S. and Canadian licensed cannabis producers, among others. The twist of irony in this case is that recreational cannabis is legal in Nevada but remains prohibited at the federal level, which applies at the border.

This is not an isolated event. Last summer, the CEO of Keirton Inc., a BC-based equipment manufacturer, was banned for life from the U.S. when border guards discovered that his crop harvesting machines are used by Canadian cannabis producers[19].

Upon a finding of inadmissibility, certain waivers allowing entry into the U.S. may be available based on the merits of each situation. They constitute the only solution to be legally permitted to enter the U.S. under these circumstances. While none of them are permanent, they are issued for up to 5 years, after which you must go through the entire lengthy and expensive process again. The application itself must be carefully prepared and documented, preferably by a U.S. immigration attorney.

 

Conclusion:

 

Absent any changes to federal law, such as potentially dropping marijuana from being a Schedule I controlled substance, it is very likely these issues will continue to be enforced.

This field of law is constantly and rapidly evolving. These open questions will undoubtedly result in litigation that will more definitively shape the boundaries of permissible engagement with companies in the marijuana industry. In the meantime, border officials have broad discretion to enforce inadmissibility laws, and employers and foreign nationals alike should be cognizant of the risks involved.

 

By Me. Adrien Coelho

 

 

 

 

 

 

 

 

 

[1] Cannabis Act, S.C. 2018, c. 16
[2] Controlled Substances Act, 21 USC § 802 and 812(d)(1)
[3] CBC NEWS, “The Canada-U.S. border: by the numbers”, December 7, 2011, online: <https://www.cbc.ca/news/canada/the-canada-u-s-border-by-the-numbers-1.999207> (consulted on March 7, 2019)
[4] FORUM RESEARCH INC., “Majority approve of legalized, regulated, taxed cannabis”, November 8, 2015, retrieved from: <http://poll.forumresearch.com/data/2b6bbcb7-561c-4299-9df2-cffc1528f09bFederal%20Marijuana%20News%20Release%20(2015%2011%2008)%20Forum%20Research.pdf> (consulted on March 7, 2019)
[5] GOVERNMENT OF CANADA, Travel Advice and Advisories, 2019, online: <https://travel.gc.ca/travelling/cannabis-and-international-travel> (consulted on March 6, 2019)
[6] Immigration and Nationality Act, 8 USC § 1101(a)(43)(B) and 1182(a)(2)(A)(i)(II)
[7] Id., § 11821(a)(6)(C)
[8] Id., § 1182(a)(1)(A)(iv)
[9] GOVERNMENT OF CANADA, OFFICE OF PRIVACY COMMISSIONER, Privacy and Outsourcing for Businesses, 2014, online: <https://www.priv.gc.ca/en/privacy-topics/outsourcing/02_05_d_57_os_01/> (consulted on March 7, 2019)
[10] GOVERNMENT OF CANADA, OFFICE OF PRIVACY COMMISSIONER, Bank’s notification to customers triggers PATRIOT Act concerns, 2005, online: <https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-businesses/2005/pipeda-2005-313/> (consulted on March 7, 2019)
[11] Patrick CAIN, “Will your cannabis credit card purchases be visible to U.S. border officials? (Some might, some won’t.)”, Global News, January 23, 2019, online: <https://globalnews.ca/news/4461315/will-your-cannabis-credit-card-purchases-be-visible-to-u-s-border-officials-some-might-some-wont/> (consulted on March 7, 2019)
[12] Colin PERKEL, “Canada Post admits privacy breach involving 4,500 Ontario Cannabis Store customers”, Financial Post, November 7, 2018, online: <https://business.financialpost.com/cannabis/canada-post-admits-privacy-breach-involving-4500-ontario-cannabis-store-customers> (consulted on March 7, 2019)
[13] United States v. Flores-Montano, 541 U.S. 149 (2004)
[14] UNITED STATES CUSTOMS AND BORDER PROTECTION, CBP Statement on Border Search of Electronic Devices, 2018, § 5.1.2 online: <https://www.dhs.gov/sites/default/files/publications/CBP%20Directive%203340-049A_Border-Search-of-Electronic-Media.pdf> (consulted on March 7, 2019)
[15] Immigration and Nationality Act, supra, note 6, § 1182(a)(2)(C)(i)
[16] Id., § 1182(a)(2)(C)(ii)]
[17] UNITED STATES CUSTOMS AND BORDER PROTECTION, CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border, 2018, online: <https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border> (consulted on March 7, 2019)
[18] Vanmala SUBRAMANIAM, “Canadian cannabis investor gets lifetime U.S. entry ban as conference goers face scrutiny at the border”, Financial Post, November 20, 2018, online : <https://business.financialpost.com/cannabis/cannabis-business/cannabis-investing/canadian-cannabis-investor-gets-lifetime-ban-from-u-s-as-vegas-conference-goers-face-scrutiny-at-border> (consulted on March 7, 2019)
[19] Perrin GRAUER, “Canadian cannabis workers targeted by U.S. border guards for lifetime bans”, StarMetro Vancouver, July 5, 2018, online: <https://www.thestar.com/vancouver/2018/07/05/canadian-cannabis-workers-targeted-by-us-border-guards-for-lifetime-bans.html> (consulted on March 7, 2019)
CREDIT PHOTO: Chris Roussakis/AFP
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