Canada’s cannabis legalization creates yet another wrinkle in the relations between the U.S. and its northern neighbor.
U.S. Attorney General Merrick Garland harbors a more progressive stance towards cannabis compared to his predecessor, Jeffrey Sessions, but the U.S. federal stance on cannabis remains unchanged under the Controlled Substances Act. What does this mean for Canadians who are 100% legally involved in Canada’s cannabis industry when coming to the United States?
Updated Statement on Canada’s Legalization of Marijuana and Crossing the Border
The answer became clearer when U.S. Customs and Border Protection (“CBP”) issued its Updated Statement on Canada’s Legalization of Marijuana and Crossing the Border in late 2019 and reaffirmed it in 2021:
A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. [H]owever, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.
Though this updated statement was a welcome surprise, it justifiably provokes skepticism from U.S. immigration lawyers who have seen countless foreign nationals banned for life from entering the U.S. because they once used marijuana or were once associated with the cannabis industry. In 2022, anecdotal reports from Canadian nationals suggested that U.S. border officials have become somewhat more lenient in the application of this rule for those uninvolved in the cannabis industry, but the risk remains significant.
U.S. Controlled Substances Act
Under the U.S. Controlled Substances Act (“CSA”), passed by U.S. Congress in May 1971, cannabis is classified as a Schedule I drug. Despite a growing movement toward state-level legalization and medical use, cannabis remains listed alongside heroin and LSD, among others, that: (i) have a high potential for abuse; (ii) have no currently accepted medical use in treatment in the U.S.; and (iii) lack accepted safety for use under medical supervision.
There have been several attempts at federal legalization or rescheduling of cannabis since 2019, with the Marijuana Opportunity Reinvestment and Expungement (MORE) Act passing the House of Representatives multiple times, but federal legalization remains stalled. Until this changes, cannabis remains a Schedule I substance under the CSA, and foreign nationals can still be penalized for any association with it.
Immigration and Nationality Act
U.S. federal law – more specifically the Immigration and Nationality Act (“INA”) — governs entry into the United States and under the INA, a “conviction” for controlled substances renders a foreign national inadmissible into the U.S. INA’s definition of “conviction” expands beyond a formal finding of guilt by a court of law to include instances where a foreign national admits to the essential elements of the crime under oath to a U.S. consular or CBP officer. For example, by answering “yes” to the question, “Have you ever smoked pot?”
Even a foreign national who has never consumed marijuana could be declared inadmissible under the INA based on his or her involvement in a legal cannabis business, either as “a knowing aider, abettor, assister, conspirator, or colluder with others” or “an illicit trafficker” of a controlled substance. Earlier in the year, we saw two examples of this when Canadian businesspersons Sam Znaimer and Jay Evans were banned for life from entering the U.S. because of their intended affiliations with U.S. cannabis industry.
Of course, lying about the use of or affiliation with marijuana would also render a foreign national inadmissible and you should avoid this at all costs. CBP has the legal authority to search electronic devices, and if it finds conflicting and/or incriminatory evidence about a foreign national’s actual or intended activities, that foreign national may be refused entry into the U.S. or even given a lifetime ban. A 2020 update to CBP guidelines reiterated the agency’s right to perform warrantless searches of electronic devices at the border, making it even more critical for foreign nationals to be cautious about cannabis-related material on their devices.
Waiver of Inadmissibility
Once declared inadmissible, a foreign national needs a waiver of inadmissibility from the CBP to enter the U.S. These waivers are discretionary, costly, time-consuming, and limited in validity to between one and five years. Even with a waiver, a foreign national will typically face secondary questioning and delays each time they attempt to enter the U.S., even when the purpose of the visit is purely personal.
Foreign nationals have also been historically denied entry for profiting from the drug trade. Because of this, cannabis lawyers were concerned that virtually all foreign nationals lawfully engaged in Canada’s cannabis industry would be deemed inadmissible even if coming to the U.S. for purely personal reasons. However, since 2021, there have been isolated cases where waivers were granted to individuals with links to Canada’s legal cannabis industry, particularly for personal travel. Still, these are rare exceptions rather than the norm.
The CBP statement, reaffirmed in 2021, appears to exempt individuals who seek to enter the U.S. for reasons unrelated to cannabis. However, the process of admitting foreign nationals into the U.S. remains discretionary and subjective, and only time will tell exactly how this policy will be applied at U.S. ports of entry. While there has been a slight softening of enforcement at the border in some cases, the risks remain high for those with professional cannabis affiliations, and it’s critical to consult legal counsel before attempting to cross the border.
