Posts Tagged ‘Cannabis Act’

Canada’s Legalization and The Border, One Year Later

Thursday, October 17th, 2019 by W. Scott Railton

Canada’s Cannabis Act went into effect on October 17th, 2018, after years of politics, hearings, and preparations. We had a small part to play in the run-up, as concerns materialized about how legalization might impact cross-border travel. I received many inquries from the Canadian and U.S. media, and even testified before Parliament on the subject. There were some who said legalization would lead to long lines at the border, and a surge in lifetime bans related to admissions.

So, one year later, where do things stand?

For the months following legalization, I felt there were less questions at the border about marijuana, generally. I don’t think officers were under special instruction, but the U.S. Customs and Border Protection (CBP) said things were basically the same as always, since the U.S. hadn’t changed its laws. Nonetheless, I saw and heard of less cases where people were denied entry and/or banned for marijuana related activities.

The focus of the agency seemed to be more on industry workers and travel, than on marijuana use. I did hear of cases where persons in the Canadian industry were denied travel to the U.S. to participate or attend marijuana business conferences, which there are many of. CBP had already said someone would not be barred for working in the legal Canadian industry, but the cross-border piece seemed to create hang-ups.

I also have seen many cases of denied trusted traveler applications (NEXUS and Global Entry programs), as well revocations in cases where individuals are either investors or workers in the industry, or family members of the same.

For those who travel on the visa waiver program (ESTA) and are denied, acquiring a visitor visa has been challenging after the fact, and the revocation of ESTA a serious hardship.

The rise and prevalence of cannabidiol has also become an issue in cross-border travel, as we are seeing some cases where persons are denied entry for having drops, pills, and other related CBD products. The passage of the 2018 Farm Bill was passed in the U.S., legalizing hemp-based products with no more than 0.3% tetrahydrocannabinol (THC). This has led to various questions from both investors and consumers.

In the past few months, we have seen a surge in the use of expedited removal at local ports of entry. Expedited removal is an administrative deportation at a port of entry. Typically, a five year ban is applied, although it is a lifetime ban if the basis is misrepresentation. Waivers are available for future temporary admissions, via an expensive and burdensome waiver process. Expedited removals aren’t applied for criminal convictions or admissions, but the agency can make such a finding and then determine a person isn’t in possession of appropriate immigration documentation.

Generally speaking, nonimmigrant waiver and permission to re-enter adjudication timelines have improved, possibly due to the new on-line filing system. However, the agency seems to have gotten tougher in granting some waivers, such as those for persons denied admission related to illicit trafficking.

It is now apparent that other types of issues may loom large as future cross-border concerns. The underground market in cannabis continues in Canada, which can lead to activities which form sufficient basis to violate Canada’s Criminal Act.

There are many other ways to violate Canada’s Cananbis Act, and in doing so create other bases for inadmissibility. Privacy concerns abound regarding the electronic aspects of marijuana business, as well as electronic searches and seizures at the border. Because the many issues surrounding legalized cannabis can be confusing, training of officers and education of the public persist as concerns.

By and large, though, I will say that many of the cross-border issues that were concerns prior to legalization, such as long lines at the border or random Q&As on past use, have not materialized on a large scale.

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Posted in General, Marijuana and Immigration, Scott Railton |

Canada’s Cannabis Act and U.S. Inadmissibility

Friday, September 21st, 2018 by W. Scott Railton

Canada’s Cannabis Act, otherwise called Bill C-45, legalizes cannabis nationally on October 17th. The starting point for all U.S. border issues is the U.S. Immigration and Nationality Act. With that in mind, I’ve put together a list below of the key provisions of the INA concerning marijuana and inadmissibility.

I. Criminality Related Grounds

A. Personal:

a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];

Note: Cannabis on person/in car: this is a Customs violation, likely warranting a fine and further questions. Not typically referred for prosecution, though a violation of the Controlled Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in crimes involving moral turpitude, a separate basis of inadmissibility.

B. Illicit Trafficking (“Reason to Believe”: no conviction required)

d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];

e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other benefit from the illicit trafficking in the past five years, and knew or reasonably should have known that the financial or other benefit was a product of such illicit activity. [INA § 212(a)(2)(C)(ii)];

II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)

f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];

g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history of behavior posing threat to property, safety or welfare of others [INA § 212(a)(1)(A)(iii)(I and II)]

• Panel physician – have to pay government certified physician for exam
• CDC Technical Instructions requires 1 year of remission

III. National Security- (Unlawful purpose)

h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];

IV. Misrepresentation/Fraud

i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit [INA § 212(a)(6)(C)].

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Posted in General, Scott Railton |