Canada: Travel And Admissibility To The United States After The Enactment Of Canada's New Cannabis Legislation

Non-Americans who are "inadmissible" are not permitted by law to enter or remain in the United States—whether it be as visitors, students or workers. The Immigration and Nationality Act (INA) sets forth "General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission" which include, among others, health, criminal activity, national security, fraud and misrepresentation, prior removals, and unlawful presence in the United States. A finding of inadmissibility, in most instances, results in a permanent bar from the United States—one which can only be overcome by completing an official application and being approved for a "waiver" of one's inadmissibility.

Past convictions and admissions to past conduct involving the production, possession, use and sale of marijuana by Canadians and other non-Americans who seek entry to the United States have traditionally triggered the risk of these individuals being denied entry by the United States authorities on the basis of being deemed "inadmissible" under health or criminal grounds pursuant to the United States' INA. What is important to note is that the enactment of The Cannabis Act, the result of the Canadian federal government's efforts to legalize marijuana and establish parameters surrounding marijuana production, distribution, and possession in Canada, will not, in many instances, lessen or eliminate the risk of travelers being found inadmissible to the United States under the same grounds. In fact, confusion over what type of marijuana-related activity is legal and where, combined with the lack of published guidance for United States officers responsible for the issuance of visas for and admitting travelers to the United States, may possibly lead to an even higher number of non-Americans being found inadmissible to the United States.

Inadmissibility Under the INA

Activity in Canada and Elsewhere Outside of the United States

Section 212(a)(2)(A) of the INA sets out the criminal grounds upon which an officer may deem a traveler inadmissible. It reads:

  1. In general.-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

    1. a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
    2. 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 Substances Act (21 U.S.C. 802)), is inadmissible.

    [Emphasis added].

The broad wording of this section (which permits a finding of inadmissibility for convictions or simply admissions to acts which would have been illegal in the jurisdiction in which they were committed and at the time they were committed) thus continues to pose risks for travelers with past convictions or admissions to past acts in Canada prior to the legalization of marijuana.

However, these same activities or acts committed in Canada after the legalization of marijuana may not necessarily be free of scrutiny in a determination of admissibility to the United States either. While such acts may be legal in Canada, an officer may make a determination of inadmissibility due to health-related grounds – specifically if the officer believes that the individual's use of marijuana renders him/her to possess or display "a physical or mental disorder and behavior" that could pose a risk to property or others or that the individual's use renders him/her a "drug abuser or addict".

Specifically, Section 212(a)(1) of the INA states:

  1. In general.-Any alien-

    1. who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1b

      ...

    1. who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

      1. to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
      2. to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
    2. who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.

Moreover, the risk of being found inadmissible is not restricted to those who use marijuana.

Under the INA, a traveler may be found inadmissible if the admitting officer "knows or has reason to believe" that they are or have been an illicit trafficker in a controlled substance (a knowing assister, abettor, conspirator, or colluder). Specifically, Section 212(a)(2) states:

...

  1. CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular officer or the Attorney General knows or has reason to believe–

    1. is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so;

      is inadmissible.

      [Emphasis added].

The reach of this section expands even beyond the individual thought to be the "aider, abettor, assister, conspirator, or colluder" as it also states that immediate family members, described as,

...the spouse, son, or daughter of an alien inadmissible under clause (i), [who] has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity...

may also be found inadmissible.

In application, non-Americans who simply work within the marijuana industry may be and have been deemed inadmissible under this rather broad section. For example, several Canadian sales executives who sought to enter the United States to conduct a sales demonstration on a marijuana bud trimming machine were found inadmissible under this section on the basis that there was "reason to believe" that they were involved in the drug trade. It would also be prudent to consider that non-Americans seeking to apply for work visas for the United States to work in the marijuana industry could also be found by admitting officers to be "endeavoring" to assist in the "illicit trafficking" activities described above. At this time, it is simply not known how direct or indirect the past, present or proposed work activity's link to marijuana (physically as well as metaphorically) might need to be for the individual to be considered to be "aiding, assisting or abetting".

Activity in the United States

Under United States federal law, marijuana continues to be listed as a controlled substance under the Controlled Substances Act and is thus technically still illegal across the United States. The legalization of medical marijuana in 29 states and recreational marijuana in nine states (to date) has afforded American citizens with some protection from the enforcement of laws banning the possession, use and distribution of marijuana. However, the continued existence of these federal laws continues to render these acts illegal in all states and, noting that inadmissibility does not need to be triggered by a criminal conviction, the commission and/or admission of these acts in any state by a non-American could very well still trigger a finding of inadmissibility.

In the end, the combination of broadly-worded immigration legislation, low thresholds in exercises of discretion and the lack of published guidance or policy for officers responsible for the admission of travelers to the United States has posed and will likely continue to pose potential issues for non-American travelers. The enactment of Canada's marijuana legislation in the summer of 2018, meant to provide a greater sense of certainty and legality for specific marijuana-related activities in Canada, may instead lead to more confusion, uncertainty, delays and inadmissibility findings for those same individuals seeking to travel to the United States. Particularly until clearer guidance is issued, travelers to the United States should stay informed and cautious of the United States laws and grounds of inadmissibility as they may be applied in this context.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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