United States: Potential Immigration Consequences For Workers And Investors In The Canadian Cannabis Industry

Last Updated: November 26 2018
Article by Jorge R. Lopez, Shireen J. Karcutskie and Sam Lazzaro

Canada legalized the recreational use of marijuana effective October 17, 2018. Although many American states have loosened their marijuana restrictions, including those on the U.S.-Canada border like Washington, Michigan, and Maine, the use and possession of marijuana and marijuana products remain illegal under U.S. federal law. Mike Niezgoda, a spokesman at the U.S. Customs and Border Protection (CBP) office in Buffalo, has indicated that those participating in the marijuana business may be turned away at the border, saying: "Working or having involvement in the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect an individual's admissibility to the U.S."1 Likewise, according to Todd Owen, Executive Assistant Commissioner for CBP, "[f]acilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect an individual's admissibility to the U.S."2 While Mr. Owen did not specify any minimum level of investment in the industry, he signaled the agency's focus was on those attempting to bring the sector to the United States.3 Border agency press officer Stephanie Malin clarified "that industry workers or investors could face a permanent ban on travelling to America."4 As she reiterated, "[u]nder U.S. federal law, marijuana isn't legal."5

Crossing the Border with Cannabis

The Canadian Cannabis Act creates a strict legal framework for controlling the production, distribution, sale, and possession of cannabis across Canada. Despite the fact that cannabis will become legal and regulated in Canada, it is illegal now, and will remain illegal, to transport cannabis across Canada's international borders. This prohibition applies even if an individual is authorized to use cannabis for medical purposes, and even if an individual is traveling to or from an area where cannabis has been legalized or decriminalized.6 In short, the Cannabis Act does not change the border rules of either the United States or Canada.

In the U.S., the use and possession of cannabis is illegal under federal law for any purpose as classified under the Controlled Substances Act of 1970 (CSA). At the state level, however, policies regarding the medical and recreational use of cannabis vary greatly, and in many states conflict significantly with federal law. As of November 2018, the medical use of cannabis (in some form) is legal in 31 states and the District of Columbia.7 Ten states and the District of Columbia have adopted rules permitting the use of marijuana by adults for recreational purposes.8 However, for immigration purposes, it is the federal law that controls. It is a federal offense to possess, give away, sell, cultivate, import or export cannabis. This prohibition includes any activity, commercial or otherwise, involving any part or derivative of the plant.9 Criminal convictions almost always carry immigration consequences, but in the case of cannabis and other controlled substances, a mere admission of engaging in prohibited conduct—and sometimes even evidence of the conduct without any admission—can have immigration consequences.

Immigration Consequences: A Potential Lifetime Ban

The U.S. Immigration and Nationality Act (INA) makes inadmissible anyone with a conviction for a violation of, or a conspiracy or attempt to violate, any law or regulation of a state or country related to a controlled substance such as cannabis.10 Even when there is no conviction, an admission to acts that constitute the essential elements of any law or regulation of a state or country related to a controlled substance is sufficient for a finding of inadmissibility.11 Further, a noncitizen is inadmissible if a CBP officer merely has "reason to believe" that the person is or has been a trafficker of any controlled substance,12 or has participated—aided, abetted, assisted, conspired, or colluded—in the trafficking of any controlled substance, notwithstanding a conviction.13

Inadmissibility attaches for life and cannot be waived by section 212(h)14 of the INA.

Determinations regarding admissibility are made on a case-by-case basis by CBP officers based on the facts and circumstances known to the officer at the time. Noncitizens who reveal they are employed by the newly legal cannabis industry abroad in any capacity may be deemed to be a knowing aider, abettor, assistor, conspirator, or colluder in controlled substance trafficking, and denied entry into the United States. Additionally, the border search exception, which allows search and seizure without probable cause, applies at the border and its functional equivalents.15 Officers may search a person's wallet, or review the contents of a laptop or cell phone, for example. If the officer notices something cannabis-related in that search, it may lead to an inquiry regarding the connection between cannabis and the noncitizen. Providing a government officer with a "reason to believe" that a noncitizen is associated with drug trafficking, which could include normal association with state- or country-legal cannabis, is sufficient to make the noncitizen inadmissible.

Understanding the parameters of what "associating with drug trafficking" may mean requires a look at how the U.S. government views working within the cannabis industry. In January 2018, the former head of U.S. Department of Justice (USDOJ), Attorney General Jefferson Sessions, released new guidance ("the Sessions Memo") that formally rescinded prior guidance known as the Cole Memo.16 The Cole Memo17 was written by former U.S. Attorney General James M. Cole in 2013, and indicated that prosecutors and law enforcement should focus only on the following priorities related to state-legal cannabis operations:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

The Sessions Memo of January 2018 took a much more hardline approach, essentially overturning the Cole Memo, emphasizing that the CSA remains the law of the land and that the cultivation, distribution, and possession of marijuana continues to be illegal under federal law. Consistent with that position, and as noted earlier, CBP has warned that "[g]enerally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States."18

Still, the USDOJ currently does not set any bright-line rules for the enforcement of the CSA as to marijuana-related activities. Thus, the principles of federal prosecutorial discretion, judicial resources, and the case-by-case interpretation and application of these standards are critical to predicting the factors that will shape whether federal prosecutors will seek to enforce the CSA with respect to marijuana. Likewise, the case-by-case interpretation and application of the "reason to believe" standard will shape how border officials approach and will seek to enforce the inadmissibility of individuals who are suspected of marijuana use, trafficking, etc.

Practical Concerns

There are significant business opportunities, as well as legal risks, presented by the evolving, quasi-legal cannabis industry. Cannabis-related activities remain technically illegal under federal law. The USDOJ does not require the enforcement of the CSA as to cannabis, particularly in states where the substance is legal, or when businesses only indirectly support the cannabis industry by providing legitimate services and investments. But that position may be largely attributable to U.S. House of Representative imposed caps on spending in support of these efforts. Any prior failure to act does not mean that that the USDOJ will not seek to enforce federal law on its borders going forward.

Our understanding is that CBP officials are not planning to go out of their way to interrogate every individual crossing the border about marijuana use. However, other factors may cause them to raise the topic. Todd Owen, in his interview with Politico noted, "Our officers are not going to be asking everyone whether they have used marijuana, but if other questions lead there — or if there is a smell coming from the car, they might ask." Likewise, marijuana residue could be detected by CBP inspection dogs and lead to further questioning. According to Mr. Owen, if asked about past drug use, travelers should not lie. "If you lie about it, that's fraud and misrepresentation, which carries a lifetime ban."19

For those individuals that work in the cannabis industry, questions from border agents are difficult to navigate. Often, border agents will ask the individual's occupation, and while mere tourists to the U.S. may not be barred from entering on the basis of their profession, those who have plans to engage with U.S. companies in the marijuana industry may be seen as engaged in criminal activity.20 As the Sessions Memo iterates, marijuana-related activities can serve as a basis for the prosecution of other crimes, such as money laundering and the unlicensed transmission of money under 18 U.S.C. § 195621 and § 1960,22 respectively.

This field of law is constantly and rapidly changing. These open questions will undoubtedly result in litigation that will more definitively shape the boundaries of permissible engagement with companies in the marijuana industry. In the meantime, border officials have broad discretion to enforce inadmissibility laws, and employers and foreign nationals alike should be cognizant of the risks involved.

As a practical matter, employers and individuals should be aware of the following:

  1. As indicated earlier, lying about or misrepresenting involvement in the cannabis industry—or personal use of marijuana—could result in a lifetime ban from entering the United States.
  2. It remains illegal to bring or transport marijuana, or marijuana products, across U.S. borders, including the border with Canada.
  3. If you or a family member has involvement in the legal marijuana industry, be aware of the limitations as stated above.
  4. Note that there is no clear guidance or bright-line test for determining an individual's exposure to enforcement in this area.
  5. Finally, enforcement in this area is evolving, and is subject to shift rapidly as CBP determines how to approach the change in law in Canada.

Footnotes

* Sam Lazzaro is an immigration law clerk in Littler's Miami office.

1 Gregg Quinn, Canada's Legal Weed Creates Risk for Investors at U.S. Border, Bloomberg, Sept. 14, 2018.

2 Luiza CH. Savage, U.S. official: Canadian marijuana users, workers and investors risk lifetime border ban, Politico, Sept. 13, 2018.

3 Id.

4 Gregg Quinn, Canada's Legal Weed Creates Risk for Investors at U.S. Border, Bloomberg, Sept. 14, 2018.

5 Id.

6 Government of Canada, Cannabis and International Travel (modified on Oct. 17, 2018).

7 National Conference of State Legislatures, State Medical Marijuana Laws (Nov. 8, 2018).

8 Michigan voted to become the 10th state to permit the recreational use of cannabis products on November 6, 2018; the law is expected to become effective in December 2018.

9 See 21 U.S.C. § 841.

10 See INA § 212(a)(2)(A).

11 See INA §§ 101(a)(43)(B), 212(a)(2)(A)(i)(II).

12 See Matter of Casillas-Topete, 25 I. & N. Dec. 317 (BIA 2010).

13 INA § 212(a)(2)(C)(i).

14 Section 212(h) of the INA provides that the Attorney General may, in his or her discretion, waive the inadmissibility of certain aliens, including those guilty of "a single offense of simple possession of 30 grams or less of marijuana" under specified circumstances.

15 United States v. Flores-Montano, 541 U.S. 149 (2004).

16 Jefferson B. Sessions, III, U.S. Att'y Gen., Memorandum for All United States Attorneys: Marijuana Enforcement (Jan. 4, 2018).

17 James M. Cole, Deputy Att'y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).

18 U.S. Customs and Border Protection, CBP Statement on Canada's Legalization of Marijuana and Crossing the Border (updated Oct. 9, 2018).

19 Luiza CH. Savage, U.S. official: Canadian marijuana users, workers and investors risk lifetime border ban, Politico, Sept. 13, 2018.

20 U.S. Customs and Border Protection, CBP Statement on Canada's Legalization of Marijuana and Crossing the Border (updated Oct. 9, 2018).

21 See 18 U.S.C. § 1956 (Laundering of Monetary Instruments).

22 See 18 U.S.C. § 1960 (Prohibition of Unlicensed Money Transmitting Businesses).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jorge R. Lopez
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions