Cannabis became legal throughout Canada on October 1, 2018. In the U.S., 10 states and the District of Columbia have legalized recreational and medical cannabis use and production, and 33 states have legalized medical cannabis. Mexico's Supreme Court ruled that marijuana prohibition is unconstitutional, paving the way to follow Canada to nationwide legalization.
But beware: Cannabis is an illegal controlled substance under U.S. federal law. The U.S. Department of Homeland Security agency Customs and Border Protection (“CBP”) is the enforcement agency at the U.S. border and airports, and their job is to keep out those who have violated or might violate federal law or cause harm in the U.S. CBP is taking the position that it may bar from entering the U.S. foreign citizens who have used cannabis previously, or who work for or invest in cannabis businesses in the U.S. and elsewhere.
Grounds for Banning Entry
BP officers are law enforcement officers. They don’t make the laws but enforce the laws and should be treated with all due respect. But the role of CBP will become more complicated, as hemp and non-psychoactive CBD compounds are set to become legal for production and use in the United States under the Farm Bill that Congress passed and the President signed on December 20, 2018. Please see our other detailed advisory here.
CBP still may bar entry for certain activities:
- Persons convicted of controlled substance laws anywhere in the world can be banned.
- Admitting to prior illegal use anywhere can result in a ban, even if there was no conviction.
- Drug addicts and drug abusers will be banned.
- Involvement in business activities with cannabis when it was illegal can result in a ban.
- Planning activities that CBP has “reason to believe” would be aiding and abetting trafficking or controlled substance law violations can lead to a ban, including planning to promote cannabis business or planning to buy, use, sell, produce, etc., cannabis in the U.S. (even in states where it is legal).
A theory for imposing bans is that breaking the law outside the U.S. indicates the propensity to violate the law or cause harm inside the U.S. CBP officers assert that to do their job, they may ask virtually any question to anyone entering the U.S., and look at information on phones and mobile devices.
CBP would have no legal reason for barring someone solely on the basis of legal actions:
- Using cannabis in Canada when it is legal;
- Being involved in legal cannabis business in Canada;
- Using cannabis (even before October 17, 2018) with a medical use authorization;
- Involvement in U.S. business in hemp or CBD that is legal federally.
Do’s and Don’ts
Canadian and other foreign recreational users or business persons trying to navigate the rules of coming to the U.S., while violating no law and causing no harm in U.S., should be aware of these principles:
- Do not bring any cannabis product or paraphernalia into the U.S. Even residue can be detected.
- Questions from CBP must be answered truthfully.
- Do not answer “yes” to questions or statements you do not agree to or fully understand.
- Admitting to use of cannabis in Canada after it was legal on October 17, 2018, does not justify being barred from the U.S. (unless there is a concern about illegal activity in the U.S.).
- Admitting to recreational cannabis use in Canada before October 17, 2018, may result in being barred from the U.S.
- Working for a legal cannabis business in Canada does not justify a ban from the U.S. (unless CBP has a reason to believe there would be illegal activity in the U.S. or some other ground of inadmissibility).
- A person who does not want to answer CBP questions may “withdraw” the application for admission, and decide to return to Canada and not enter the U.S. at that time.
- Declining not to answer CBP questions may result in not being allowed to enter the U.S. at that time. It should not result in being barred from the U.S.
- A person who does not want to hand over a mobile device, is not required to do so, but CBP might deny entry. A mobile device with marijuana apps is likely to draw scrutiny from CBP.
Waiver After Denied Entry
Controlled substance violation bans are “permanent.” However, a person may apply for a waiver of inadmissibility. Waivers may take around a year to process and, if approved, are valid for one year or five years. Attorney assistance may improve the likelihood of success.
CBP Lightening Up?
Involvement in legitimate cannabis activities or legal use being decriminalized in the U.S. and elsewhere. Without a viable ground of inadmissibility, CBP should ease up the inclination to bar foreign nationals on controlled substances grounds.
Efforts are being made to urge CBP to clarify admission policies and procedures at ports of entry and avoid unnecessarily thwarting legitimate travel to the U.S. Until issues are weeded out, to minimize scrutiny, travelers should consider deleting marijuana apps from mobile phone devices before travel to the States.
This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Manufacturing, cultivation, distribution and possession of cannabis remains illegal under federal law and under certain state laws, and is strictly regulated in those states which have legalized medical or recreational cannabis.