CBP Updates Statement on Canadian Legalization of Marijuana and Determining Admissibility

With the Canadian legalization of marijuana mere days away, CBP has issued an updated statement on how Canada’s new law will affect Canadians’ admissibility to the U.S. and crossing the border. The updated statement is available here.

CBP’s updated statement contradicts previous information provided by the agency and reflects a change of tune on key issues related to individuals involved in the Canadian cannabis industry. This guidance details how officers will be determining who’s admissible and who’s not, and the consequences a traveler will face if deemed inadmissible. It should be noted that this statement was quietly released; on its website, CBP simply replaced a page containing a statement released on September 21. Our blog on the initial statement can be found here.

If you plan on crossing the border after Canadian legalization of marijuana goes into effect on October 17, here are some key points on how CBP should be making admissibility determinations:

• If marijuana use is legal in Canada and an individual uses marijuana in a legal context, could this be used as the basis of determining inadmissibility?

Simply making a statement that you used marijuana legally in Canada should not make you inadmissible to the U.S. for a controlled substance violation. In fact, generally stating that you used marijuana in the past is not an admission of a controlled substance violation as this statement may or may not lead to facts that could constitute a controlled substance violation.

In order for a statement to qualify as an admission of a controlled substance violation, CBP must:

A.  Provide an adequate definition of the crime, including all of the essential elements.

B.  Explain the definition to the person in terms he or she understands, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed.

C.  Give the person a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings must be recorded verbatim.

D.  The person must then admit all of the factual elements which constituted the crime.

E.  The person’s admission of the crime must be explicit, unequivocal and unqualified.

With that being said, Canadians should avoid engaging in marijuana use in the U.S. even in jurisdictions it is legal and should be mindful that marijuana remains illegal federally in the U.S. when questioned by CBP. Additionally, Canadians should be aware that CBP does have the discretion to bar “abusers” of drugs banned in the U.S. including marijuana. Technically any level of use is considered abuse, but occasional recreational users should be okay coming to the U.S.

• If an individual works and invests in the legal Canadian cannabis industry, could this be used as the basis of determining inadmissibility?

Thankfully, CBP’s latest statement provides greater clarity of this very issue. CBP now says that “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.” This portion of the policy is the polar opposite of a statement released by CBP two weeks ago.

However, CBP’s new statement does go on to say that “if a traveler is found to be coming to the U.S. for reasons related to the marijuana industry, they may be deemed inadmissible.”

In addition to being denied admission, CBP states that “seizure, fines, and apprehension” may be the result of “crossing the border or arriving at a U.S. port of entry in violation” of U.S. federal controlled substance laws.

Travelers who are concerned about how CBP’s position on Canada’s legalization of marijuana will affect their admissibility to the U.S. should consult a qualified immigration attorney. If you need advisement on this issue or are found inadmissible, please contact us at (716) 854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

CBP Issues Statement on Legalization of Marijuana in Canada and Crossing the Border

U.S. Customs and Border Protection (CBP) recently released a statement on Canada’s legalization of marijuana warning that “working in or facilitating the proliferation of the legal marijuana industry in the U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.”  Although medical and recreational marijuana may be legal in some states and Canada, the sale, possession, production and distribution of marijuana (or activities the facilitate the same) remain illegal under U.S. federal law. CBP unequivocally states that Canada’s legalization of marijuana will not change their enforcement of U.S. federal laws regarding controlled substances. CBP advises that crossing the border or arriving at a U.S. port of entry in violation of this U.S. federal controlled substance law may result in seizure, fines, and/or arrest and impact inadmissibility.  

CBP Officers will be responsible for making determinations on admissibility and whether any regulatory or criminal enforcement is appropriate based on the known facts and circumstances. Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance, is admissible to the U.S.

SRW Border Lawyers will be closely monitoring the impact of the legalization of marijuana in Canada and crossing the U.S. border. We will also be providing supplemental blogs on this hot topic.

Smoke and Mirrors: Marijuana’s Catastrophic Effect on Immigration Status

Quickly-evolving marijuana laws are making many Americans optimistic that legalization is on the horizon. Just across the border, the legal use of recreational marijuana in Canada may be authorized later this year. Even so, a foreign national’s chances of staying in the states could go up in flames after a marijuana-related offense. Similarly, a foreign national may be denied entry into the U.S. for marijuana use or marijuana-related offenses.

The gradual legalization of marijuana in the U.S. is creating a false sense of security for noncitizens, who might be under the impression that using marijuana in accordance with state law is harmless. Don’t be fooled: although more states are jumping on the bandwagon of decriminalizing marijuana – marijuana is still illegal under federal law and for immigration purposes federal law is all that matters. Violating federal marijuana laws has serious implications for foreign nationals, affecting admissibility to the U.S. and the ability to apply for naturalization just to name a few. Notably, a noncitizen who admits to an immigration official that they possessed marijuana can be found inadmissible, denied entry to the U.S., or have their application for lawful status or even citizenship denied. Depending on the circumstances, admitting to marijuana possession, can make an LPR deportable – even if permitted under state law and/or the individual was never convicted of a crime.

As of January 2018, the use of medical marijuana is legal in 29 states as well as the District of Columbia. Recreational use has been legalized in the District Columbia and nine states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington. While these state laws legalizing marijuana provide valuable benefits, they have proven to be a trap for unsuspecting immigrants. For example, foreign nationals living in one of these states may readily admit to immigration officials that they have used or possessed marijuana under the assumption that it is safe to do so.

According to a report by the Immigrant Legal Resource Center (ILRC) (as well as our experience), in some states including Washington State “ICE, CIS and CBP agents are aggressively asking noncitizens if they ever have possessed marijuana, in an attempt to hold people in admissible.” Accordingly, before crossing the border and potentially being interviewed by CBP, it is imperative that noncitizens are aware that immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.

Understanding Federal Marijuana Laws

Possessing, giving away, selling, cultivating, importing or exporting marijuana are all considered federal offenses. Working in the marijuana industry – even if it’s a state-licensed operation – counts as drug trafficking. Offenses are applicable to both recreational and medical marijuana because there are no exceptions under federal law for medical or other use. (A medical marijuana card is not a “get out of jail free” card.)

Using or being under the influence of marijuana, as well as possessing paraphernalia, are not federal offenses. Even so, committing one of the aforementioned transgressions will cause problems for noncitizens trying to cross the border. Notably, noncitizens who admit to using recreational or medical marijuana in accordance to state law can be found inadmissible to the U.S. under immigration law.

Consequences of Marijuana for Noncitizens

Potential consequences of marijuana for noncitizens include inadmissibility, removability and ineligibility for naturalization. Specifically:

• A criminal conviction for a state or federal marijuana offense can make a noncitizen both deportable and inadmissible. (For reference deportability refers to a noncitizen being removable from the U.S. whereas inadmissibility refers to a noncitizen being ineligible to enter the U.S.)
• Admitting to the commission of a state or federal marijuana offense can render a noncitizen inadmissible to the U.S. even without a conviction. The state laws legalizing marijuana have led to noncitizens mistakenly believing that it is okay to admit to marijuana use or possession when questioned by immigration officials causing irreparable harm to their ability to freely enter the U.S.
• Noncitizens may be found inadmissible to the U.S. if immigration officials have “reason to believe” the individual participated in drug trafficking – this can include working legally in the marijuana industry. A noncitizen may also be found inadmissible if within the last five years, he or she has benefited from such trafficking by an inadmissible spouse or parent.
• Admitting to the use of marijuana – even without a conviction – may render a noncitizen inadmissible or deportable for being an addict or abuser pursuant to U.S. immigration law.
• Committing a marijuana-related offense or admitting to marijuana use may result in a U.S. Lawful Permanent Resident (LPR) being temporarily or permanently ineligible for naturalization. Specifically, an applicant must establish “good moral character” in order to become a citizen and committing a marijuana-related offense does not constitute “good moral character.” Inadmissibility resulting from an offense will count against an LPR. In some cases, it may bar an LPR from applying naturalization for a specified period of time or indefinitely.

As long as federal marijuana laws reign supreme, foreign nationals must remain vigilant and exercise extreme caution with marijuana including disclosing marijuana use – even if permissible under state law – at ports of entry, before USCIS in applications or interviews, to consular officials, at consular visa medical appointments or in removal proceedings.

Some practical advice for noncitizens and marijuana:

• Simply put: stay away from marijuana if you are not a U.S. citizen.
• Any photos or text related to marijuana need to be removed from your phone and social media accounts.
• Do not carry or display any materials that refer to marijuana (for example, a bumper sticker or a T-shirt) when traveling to the U.S.
• If you have ever used marijuana or worked in the industry do not depart the U.S. or apply for U.S. immigration status or naturalization without first speaking with an experienced immigration attorney.
• Before obtaining a medical marijuana card speak with an experienced immigration attorney.
• If you have a medical marijuana card, do not have it on you while traveling to the U.S.
• This should be a given, but should be emphasized: don’t bring marijuana with you when traveling to the U.S.
• Don’t discuss any conduct involving marijuana with immigration, border or law enforcement authorities. (The only exception is if your immigration attorney has advised that this is safe.)

Generally speaking, those who have possessed, used, or worked in the marijuana industry should not travel outside of the United States. This applies to anyone who is in the U.S. and is not a citizen – permanent residents included. Departing the U.S. and subsequently returning can put the noncitizen in a compromising position if a CBP officer questions them about marijuana. If questioned, the best option is to decline to answer, then contact an attorney.

If you need legal advice regarding marijuana and its effect on your immigration status, contact us at Serotte Reich: 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consulation.

Inadmissibility Based on Admissions of Criminal Conduct – INA§212(a)(2)(A)(i)

It is well settled and understood that a criminal conviction may form the basis of determining an individual inadmissible to the United States under the Immigration and Nationality Act (“Act”). In particular, INA § 212(a)(2)(A)(i) provides that arriving aliens are inadmissible to the U.S. if they have been convicted of: (I) a crime involving moral turpitude, or an attempt or conspiracy to commit such a crime or (II) a violation of a controlled substance offense of any State, the United States, or a foreign country.

It is surprising, however, that under INA § 212(a)(2)(A)(i), an individual can also be rendered inadmissible for merely admitting to criminal activity even though they may never have been convicted in a court of law for those offenses. Specifically, except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of - (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) 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 (as defined in section 102 of the Controlled Substance Act (21 USC 802)), is inadmissible.

On its face, the statute indicates that a factual admission of criminal activity by an individual is sufficient to support a criminal charge of inadmissibility. However, ascertaining whether or not an individual has “admitted to committing acts that constitute the essential elements” of such crimes (moral turpitude or a controlled substance offense) is far more complicated.

Fortunately, the Board of Immigration Appeals (“BIA”) has issued case law dictating certain requirements that an “admission” must meet to effectively support a charge of inadmissibility under INA § 212(a)(2)(A)(i). The BIA explained that these rules were not based on any specific statutory requirement but have evolved in an effort to insure a fair hearing and to preclude a later claim of unwitting entrapment. Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by, Matter of E-V-, 5 I&N Dec 194 (BIA 1953). While a majority of these rules have been defined involving crimes involving moral turpitude, they also apply equally to cases involving controlled substance offenses. Pazcoguin v. Radcliff, 292 F.3d 1209 (9th Cir 2002).

In 1957, the BIA issued a landmark precedent decision in which it set forth the following three-part test for determining the legal sufficiency of an “admission” under INA:

1. The admitted conduct must constitute the essential elements of the crime in the jurisdiction where it occurred;

2. The applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and

3. The admission must be voluntary.

Matter of K, 7 I&N Dec. 594. Unless each of these three (3) elements are met, any “admission” made to a U.S. immigration officer cannot form the basis of a charge of inadmissibility. Additionally, the BIA held that in order for an admission to be valid for INA § 212(a)(2)(A)(i) purposes, it must be unequivocal and complete. Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

In response to the BIA’s precedent decisions, requirements have been developed for immigration officers to adhere to while obtaining admissions. For example, the Department of State in the FAM issued procedural requirements consular officers must follow when eliciting admissions to a previous criminal offense that mirror the requirements established by these decisions. Specifically, 9 FAM 40.21(a) N5.1 requires officers to:

1. Give the applicant a full explanation of the purpose of questioning;

2. The crime the applicant has admitted to must appear to constitute moral turpitude based on the statute and the applicant’s statements;

3. Before commencing questioning, the applicant must be provided an adequate definition of the crime, including all essential elements in terms that the individual understands, making certain the definition conforms to the law of the jurisdiction where the offense is alleged to have been committed;

4. The applicant must admit to all factual elements constituting the crime; and

5. The applicant’s admission must be explicit, unequivocal and unqualified.

Individuals deemed inadmissible under INA § 212(a)(2)(A)(i) based on an “admission” will forever require a nonimmigrant waiver to enter the U.S. This is a serious consequence and as such, we encourage foreign nationals who have been charged with inadmissibility based on an “admission” to a U.S. immigration officer, who never appeared before a judge or was convicted in a court of law, to consider having their situation reviewed to determine whether all the requirements of an “admission” were properly met. If you were found inadmissible under INA § 212(a)(2)(A)(i), contact our office to have us evaluate whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to enter the U.S.