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.  

Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

• Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
• Aliens who, regardless of the basis for removal:
  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;*
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but have not departed; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued to every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

Mexican Citizen Approved for Second Re-entry Permit

LPR Since: February 2011

Reasons for Residing Abroad: Client had previously retained our firm to obtain a two-year reentry permit. As his expiration date neared, he determined that his family circumstances prevented him from returning to the U.S. as soon as he had hoped. Sadly, his father had recently passed away, and he needed to remain close to his aging mother to continue assisting her with medical needs and support her emotionally as she dealt with the loss of her husband. Additionally, our client was in the process of petitioning for his foreign spouse to immigrate with him to the U.S. As a newly married couple, they did not want to be separated during the potentially lengthy process of obtaining her immigrant visa. Our client anticipated being able to transfer back to the U.S. after these family matters were resolved.

Ties to the U.S.: U.S. bank accounts and credit cards, filing U.S. Income Tax Returns, maintaining U.S. 403K account

Approx. Adjudication time: 3 months and 8 days

Re-entry Permit Validity: 2 years

Time outside U.S.: 4-5 years

Country of Citizenship: Mexico