Weed Watching – CBP Immigration Policy Enforcement Relating to Marijuana Use and Industry

Strict adherence to these policies are likely to cause problems for non-US citizens entering the US from Canada after October 17, 2018, at which time Canada will become the world’s first major industrialized nation to legalize retail marijuana.

Read US Customs and Boarder Protection Advisory here.

CBP also just issued a travel advisory on September 21st warning travelers from Canada that “marijuana remains illegal in the US” and that possession of marijuana “may result in seizure, fines, and/or arrest, and may impact admissibility.” Under these policies, Canadians and other foreigners, including legal permanent residents of the US (“Green Card” holders) who are found in possession of marijuana at the US border potentially risk a lifetime ban on travel to the US. In addition, Canadians and other foreigners who work or invest in the marijuana industry also may be prevented from entering the US, and could possibly be subject to a lifetime ban on travel to the US.

US Citizenship and Immigration Services and Immigration and Customs Enforcement are also beginning to take adverse actions against noncitizens in the United States who are involved in the marijuana industry in the United States even where marijuana has been legalized, such as denying immigration benefits or placing individuals into removal proceedings.

Executive Assistant Commissioner Owen noted during his interview that Section 212 of the US Immigration and Nationality Act sets forth criteria that make foreigners ineligible to receive visas and ineligible to be admitted into the US, including anyone determined to be a “drug abuser or addict,” anyone who “is or has been an illicit trafficker in any controlled substance,” or who has assisted in trafficking, or obtained financial benefit from the activity. It is expected that CBP will play an active role in enforcing US federal law related to cannabis.

On October 17, 2018, Canada will become the world’s first major industrialized nation to legalize retail marijuana. Accordingly, the Canadian cannabis sector is poised to grow rapidly over the next 10 years and generate thousands of new cannabis-industry related jobs. In addition, cannabis stock offerings are appearing on the Toronto Stock Exchange, NASDAQ and other major stock exchanges. In sum, all of this Canadian-centric cannabis related commercial activity will likely result in an increase in cannabis related border incidents, particularly on the US/Canadian border. Indeed, Executive Assistant Commissioner Owen provided the following examples of how CBP officials would address marijuana related issues at the US border:

• CBP officials will stop and question at random Canadian citizens and others entering the US about marijuana, particularly travelers suspected of possessing marijuana;
• Marijuana odors can linger inside cars and can be detected by CBP inspection dogs, which could trigger further questioning, including questions about past drug use;
  • Top of Form
• If a traveler admits to past use of marijuana or other illegal drugs, the traveler will be found to be inadmissible into the US;
• Travelers stopped from entry into the US due to marijuana are typically allowed to voluntary withdraw from the border crossing – but can potentially be subject to referral for prosecution by federal/state/local authorities, or be required to pay a fine ($500 - $5000); 
• CBP maintains records of border crossing violations and will prevent banned travelers from attempting to enter the US in the future - banned travelers can apply for a CBP waiver from a lifetime ban, which is issued at the agency’s discretion;
• Canadians who work in the marijuana industry will also not be permitted to enter the US if their cannabis work affiliation becomes known to the CBP; 
• Investors in marijuana companies can also be denied US entry. CBD has reportedly denied entry into the US to marijuana investors from other countries, such as Israel; and
• Professionals who frequently cross the border (e.g., truck drivers, Canadian nurses working in US hospitals, etc.) could also lose their commuting privileges because of marijuana use and/or related violation.

CBP’s plan to strictly enforce federal marijuana laws at US border crossings occurs at a time when US corporate and private individual investment in the cannabis industry is taking off. For example, Constellation Brands, Inc., which distributes alcohol beverages worldwide, announced last month that it was investing $ billions into Canadian cannabis company, Canopy Growth Corp. Similar investments in the cannabis industry by other major US and international companies are expected to follow in the near future. However, against the backdrop of strong industry growth, US companies seeking to invest in the Canadian cannabis industry may view CBP’s travel restriction for Canadians as an obstacle for investment and could thus have a chilling effect on the desire of US companies to participate in the Canadian cannabis business opportunities.