THE LATEST FROM SRW BORDER BLOG

CBP issues ESTA reminder

If you are planning a trip to the US and will be using the Electronic System for Travel Authorization (ESTA), don’t wait until the last minute.

CBP has advised that real-time approvals will no longer be available for ESTA due to changes in application processing. International travelers who are using ESTA are instructed to apply for travel to the US a minimum of 72 hours before departure. According to a recent press release, those who apply on their day of departure may not be approved in time, and will be denied permission to board their flight.

ESTA assists in determining eligibility to travel to the US under the Visa Waiver Program, which allows citizens of participating countries to come to the US without a visa for a stay of 90 days or less (if all requirements are met). The system was implemented to enhance security of the Visa Waiver Program as part of the Implementing Recommendations of the 9/11 Commission Act of 2007.

To apply for ESTA now, visit https://esta.cbp.dhs.gov/esta.

If you have any questions about ESTA or the Visa Waiver Program, contact Serotte Reich via our website or call (716) 854-7525.

New Policy Places More Restrictions on Asylum

Getting an asylum application approved is no small feat. A new presidential proclamation will make it an even greater challenge.

The ink is barely dry on a proclamation signed by President Trump on the morning of Friday, November 9, asylum will not be granted to immigrants entering the country illegally. The change went into effect the very next day (Saturday, November 10). From that point forward, asylum can only be applied for at official U.S. ports of entry. Unless they leave the country and reenter, asylum applicants who entered the country before the proclamation will not be subject to the rule. This was issued by the Department of Homeland Security and the Justice Department. (See new policy guidance here.)

Those who deem this rule to be unlawful won’t go down without a fight. The American Civil Liberties Union (ACLU) feels that the new regulation is illegal and legal challenges are expect to come.

This only adds to a growing number of changes affecting immigration law aimed at deterring those who seek entry to the U.S. “Give me your tired, your poor, your huddled masses” is a message President Trump is trying to invalidate – one proclamation at a time.

CBP Updates Statement on Canadian Legalization of Marijuana and Determining Admissibility

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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.