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.

What to know with marijuana becoming legal in Canada next week

SRW Border Lawyers in the News – Zabrina Reich, Managing Partner at Serotte Reich in Buffalo, NY,  recently made an appearance on Buffalo’s Channel 7 evening news to provide insight on the effects of the upcoming legalization of marijuana in Canada.  

Controversial “Pre-Clearance Act” Expands Power of American Border Guards on Canadian Soil

A controversial Canadian bill that expands the powers of U.S. border officers working in pre-clearance zones on Canadian soil was recently given Royal Assent and is set to become law. Championed by Canada’s centrist Liberal Party, Bill C-23—commonly referred to as the Pre-Clearance Act—has been criticized as overly broad, with the potential to open the door to human rights violations.

In May 2017, a national coalition of 43 Canadian civil society organizations called the International Civil Liberties Monitoring Group voiced their concerns about Bill C-23 to Parliament. They questioned the purpose of the bill, noting that no evidence has been presented to the public that security measures need to be increased. The ICLMG’s brief and recommendations can be found here.

Broadly speaking, C-23 increases the powers afforded to American border officers working in Canadian pre-clearance zones and eliminates crucial existing restrictions. Key concerns raised by Canadian immigration attorneys include:

• U.S. border guards will be authorized to conduct strip searches and internal cavity searches when Canadian officers are “unable or unwilling” to do so. The broad language used appears to authorize U.S. border officials to conduct these searches even when Canadian officers deem them unnecessary or inappropriate.
• U.S. border guards will be allowed to carry firearms. They have not been permitted to do so in pre-clearance zones under previous legislation.
• Should a Canadian traveler attempt to enter the U.S. but change their mind for any reason, including feelings of discomfort or concern about their interactions with border officials, U.S. officials will be permitted to detain and interrogate them. Previously, the traveler would have been able to withdraw and return to Canada at any time. C-23 also eliminates a provision that barred U.S. border officials from using a citizen’s withdrawal from pre-clearance procedures as “reasonable grounds for suspicion” to detain them or work with Canadian officials to take steps like arresting the traveler.

The above issues are particularly concerning because, although the bill states that U.S. officials must still act in accordance with Canadian laws, it provides no clear legal remedy to travelers whose rights have been violated. Instead, according to the Canadian Muslim Lawyers Association, the bill “provides explicit blanket immunity” to pre-clearance officers, and only allows travelers to hold the U.S. government responsible in cases of property damage, injury, or death. Notably, there is no legal mechanism through which Canadians can hold U.S. officers responsible for discrimination, despite a recent rise in allegations of discrimination at the border. Under Bill C-23, U.S. officers in pre-clearance zones would be “virtually unaccountable,” said Vance Langford, chair of the National Immigration Law Section of the Canadian Bar Association.

The full text of the finalized bill is available on the Canadian Parliament’s website.

If you have questions about the provisions or implications of Bill C-23, including how it may affect your ability to enter the U.S. temporarily or permanently, please reach out to us. We look forward to assisting you with your immigration matter.

Pilot program may have lasting effect on L-1 process for Canadians

Will applying for an L-1 visa at the border soon become a thing of the past? If the pilot program starting on April 30, 2018 is any indication, change may be on the horizon.

U.S. Citizen and Immigration Services (USCIS) and Customs and Border Protection (CBP) have joined forces to launch a pilot program at the port of entry in Blaine, Washington, estimated to last six months. Currently, a Canadian L-1 applicant may present their petition at any U.S. border crossing for immediate adjudication by a CBP officer. This will no longer be an option at the Blaine, Washington, port of entry for the duration of the pilot program.

Instead, applicants in the Blaine Washington State area will need to submit their L-1 applications (Form I-129 and supporting evidence) for processing at the USCIS California Service Center before CBP can admit them into the U.S. Applicants cannot seek admission in L-1 status until they receive USCIS’s approval. According to USCIS, expedited service will be provided to L-1 applicants affected by the pilot program. The specifics of the process are still being solidified but is projected that a decision -- an approval or Request for Evidence (RFE) -- will be issued within 2-3 business days of receipt. In an effort to accelerate the process, USCIS is expected to have an email address devoted to the processing of these L-1 applications to provide case updates, and it could be possible for admission to be sought upon an email confirmation of approval.

Through the preliminary pilot program, the goal is to develop a strategy that will lessen lengthy process delays and make adjudication for L-1 applications more consistent. Additionally, through the change in process, CBP officers can give their full attention to inspections and admissibility issues instead of dedicating time to on-the-spot adjudications.

Things you should know about the pilot program:

• It is currently for L-1 applications only.
• CBP will continue to allow Canadian L-1 applicants to apply for “on the spot” adjudications at all other ports of entry.

What has yet to be determined:

• Clarification regarding potential changes to the RFE process and response time. Will it decrease the number of superfluous RFEs (as intended)?
• If the pilot program is deemed successful, will this new process be nationally implemented – and how quickly will it happen?
• Will the processes for other types of applications eventually be affected?

Updates will be made as new developments arise and Serotte Reich will be keeping you posted. Questions or concerns? Contact us at 716-854-7525 or http://srwlawyers.com/contact