Posts Tagged ‘legalization’

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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Canadian Senate Committee Issues Report on Border and Legalization

Wednesday, June 6th, 2018 by W. Scott Railton

I had the honor of testifying before Canada’s Senate Committee on National Security and Defence in April, concerning the border and Canada’s bill to legalize cannabis nationally.

The Committee issued an interesting report, in which they recognize that legalization may lead to border issues. The Committee makes recommendations for diplomatic and legislative action. The Report mentions potential issues with Pre-Clearance, NEXUS, and with interrogations.  Below I’ve pasted the Committee’s report and related press release.

Report of the committee

Tuesday, May 1, 2018

The Standing Senate Committee on National Security and Defence has the honour to table its

SIXTEENTH REPORT

Your committee, which was authorized to examine the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s borders, has, in obedience to the order of reference of Thursday, February 15, 2018, examined the said subject-matter and now reports as follows:

At the Committee’s meetings of March 19, March 26 and April 16, 2018, thirteen witnesses appeared to present their views on the subject matter of Bill C-45. Your committee presents the following comments on the bill as it relates to Canada’s borders:

1) Your committee wishes to minimize any negative effects of Bill C-45 on the movement of travellers and goods across the Canada-U.S. border. First, your committee wishes to prevent, as much as possible, Canadian travellers from being further interrogated or searched by U.S. customs officers as a result of the legalization of cannabis in Canada. Your committee also wants to prevent, as much as possible, an increase in the number of Canadian and U.S. travellers being stopped at the border for possession of cannabis. Your committee heard from witnesses who believe that, after Bill C-45 comes into force, Canadians could face delays and more Canadian travellers could face legal proceedings and/or inadmissibility for life for a cannabis offence or for simply admitting previous cannabis use to U.S. customs and border protection officers.

2) To prevent the above-mentioned problems, your committee encourages the Canadian government to have formal discussions with the U.S. government to clarify the U.S. government’s position with respect to Canadian travellers who admit to previous cannabis use. Specifically, your committee encourages the Canadian government to have formal discussions at the political level in order to clarify whether Canadians who admit to having previously used cannabis will face inadmissibility to the United States if Bill C-45 is passed. If so, your committee encourages the Canadian government to make it clear to U.S. authorities that, in its view, following the coming into force of Bill C-45, Canadian travellers should not be prohibited entry into the United States for activities that are legal in Canada, such as using cannabis or working for a company that legally produces cannabis. Your committee encourages the government to continue its dialogue with the U.S. government and to clearly and firmly communicate Canada’s position in order to minimize the impact of Bill C-45 on Canadian travellers. This dialogue could also help find solutions to issues and problems that will arise at the border following the entry into force of Bill C-45.

3) In the context of this dialogue with the United States, your committee encourages the government to negotiate an agreement with the United States on the treatment of travellers at the border on issues related to cannabis, notably on the types of questions that border officers of both countries ask travellers in light of the fact that consuming cannabis will be legal in Canada following the entry into force of Bill C-45 and that it is already legal in several American states. This bilateral agreement could also protect workers of Canadian companies in the emerging cannabis sector in order to ensure that the workers of these companies are not banned from entry into the U.S. because they are “associated with drug trafficking,” as current U.S. law states.

4) In conjunction with diplomatic activities, your committee encourages the government to increase the scope of its awareness campaign to make it clear to Canadians that crossing the Canada-U.S. border while in possession of cannabis will remain illegal even if Bill C-45 comes into force. This awareness campaign should also make it clear to Canadians that they may be denied entry into the United States if they admit to previous cannabis use. Although Canadian officials who appeared before your committee stated that an awareness campaign would be launched soon, your committee believes that additional efforts should be made in the coming months to ensure that Canadians understand the seriousness of the consequences they will face if cannabis is found in their possession at the border or if they admit to previous cannabis use. Additional awareness campaigns, one specifically targeting youth and the other focused on those who hold or apply for trusted traveller programs (such as NEXUS and FAST), should be put in place due to the unique vulnerabilities of these groups.

5) Your committee encourages the Canadian government to install signs and posters at border crossings and pre-clearance sites clearly explaining to travellers that it is illegal to cross the Canada-U.S. border with cannabis. Witnesses from Public Safety told the committee that such signs would be installed at the border. Your committee encourages the Canadian government to accelerate the implementation of its awareness campaign and the installation of signs and posters before Bill C-45 comes into force so that travellers are aware of the consequences they face if they try to cross the Canada-U.S. border with cannabis.

6) Your committee encourages the government to modernise preclearance measures in light of Bill C-45. In accordance with An Act respecting the preclearance of persons and goods in Canada and the United States, which received Royal Assent on December 12, 2017, travellers are obliged to truthfully answer any question posed to them by U.S. border officers, which means that Canadians who submit to preclearance must truthfully answer any questions about their cannabis use. At regular border crossings, travellers who refuse to answer these types of questions can be denied entrance into the U.S., but do not face lifetime bans or prison terms. However, travellers who refuse to answer questions in preclearance areas could face sentences of up to two years in prison for “resisting or wilfully obstructing a preclearance officer.” Your committee therefore encourages the government to modernise the Act respecting the preclearance of persons and goods in Canada and the United States in light of Bill C-45.

7) Lastly, your committee requests that the government table before Parliament a plan to protect Canadian travellers at the border. This plan should outline the measures that the government intends to take to minimise the impact of Bill C-45 on the movement of travellers and goods across the Canada-U.S. border. This plan should also explain the approach that the government intends to take in its negotiations with the United States in order to ensure that Canadian travellers are not denied entry into the United States for previous cannabis use or for engaging in any other type of activity that would become legal following the entry into force of Bill C-45.

Respectfully submitted,

GWEN BONIFACE

Chair

 

News Release
The Standing Senate Committee on National Security and Defence
Legalized cannabis could lead to border-crossing woes
May 2, 2018
________________________________________
Ottawa – If recreational cannabis becomes legal in Canada, the federal government should continue official discussions with the United States about the treatment of Canadian travellers so that they remain able to cross the border with minimal inconvenience, the Senate Committee on National Security and Defence said Tuesday.

Committee members made a number of comments with regard to the legalization of cannabis after studying the issue as it relates to Canada’s borders.
Senators wish to minimize the effect of legalization on the movement of travellers and goods so that Canadians do not, for instance, face lengthy interrogation or increased searches by U.S. customs officials.

Witnesses have testified that Canadians travelling to the U.S. could be inadmissible for entry simply for admitting to previous cannabis use.

The committee requests that the government table before Parliament a plan to protect Canadian travellers at the border.

Quick Facts

• Pursuant to a motion adopted in the Senate on February 15, 2018, the Senate Committee on National Security and Defence was authorized to study Bill C-45, the Cannabis Act, as it relates to Canada’s borders.

• The motion also authorized the Senate committees on Aboriginal Peoples, Foreign Affairs and International Trade, and Legal and Constitutional Affairs to study aspects of Bill C-45.

• These committees’ reports will be reviewed by the Senate Committee on Social Affairs, Science and Technology during its study of the bill.

Quotes

“With legalization looming, Canada must be prepared for the consequences. Canadians must be confident that they will still be able to cross into the United States without fear that activities legal in Canada will be held against them. We urge the government to make the necessary diplomatic overtures.”
– Senator Gwen Boniface, Chair of the committee.

“If the legalization of cannabis is to take place with a minimum of harm, the government will need to address the issues our committee has raised. The mobility of people and goods across the U.S. border is crucial to Canada’s economy; we cannot afford to be unprepared.”
– Senator Jean-Guy Dagenais, Deputy Chair of the committee.

“Our actions, as legislators, have consequences. Sometimes they are difficult to foresee, but in this instance it is all too clear that Bill C-45 could adversely affect cross-border mobility. There is still time for the government to take steps to protect Canadian travellers.”
– Senator Mobina S.B. Jaffer, Deputy Chair of the committee.

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Scott Railton Testifies Before Canadian Senate Committee on Border

Thursday, April 19th, 2018 by W. Scott Railton

I was honored to speak this week with Canada’s Standing Senate Committee on National Security and Defence concerning Bill C-45, the Cannabis Act, insofar as it relates to Canada’s borders. Legalization hasn’t happened at the U.S. federal level, and this begs many questions about border travel after legalization. Increasingly, I am asked, “What happens when Canada legalizes marijuana for all to use, like in Washington State?” Parliament is now taking up the query, as it studies moving forward with Bill C-45.

There are still many unanswered questions. The U.S. Immigration and Nationality Act and the U.S. Controlled Substances Act haven’t changed on marijuana, despite the sea change in legalization in many other jurisdictions, including Washington State and soon Canada. In our observation, this has led to issues for persons seeking admission or other immigration benefits, with some regularity.

The Senators had questions about how legalization might impact border traffic. My co-panelists were the Mayor of Windsor, Drew Dilkens, and Jonathan Blackham, Director of Policy and Public Affairs at the Canadian Trucking Association. Like me, they expressed concerns. These included possible slow-downs in inspections and increased wait-times; cannabis or cannabis residue being found increasingly in cars and trucks; trusted traveler and FAST interviews; and the queries made by U.S. officers.  The Mayor and I both emphasized the need to educate the public on the conflicts of laws, concerning immigration and cananbis.

I used my introductory remarks to lay out the bases for inadmissibility to the United States that involve cannabis. Even if Canada legalizes cannabis, there are several bases for inadmissibility that may still involve cannabis and affect persons seeking admission. These include admitting to past violations of a Controlled Substance law; health-related grounds related to being deemed a drug abuser or drug addict; national security grounds for inadmissibility relating to seeking entry for an illegal purpose (e.g. to purchase cannabis in a state where it is legalized); misrepresentation related to cannabis questions; involvement in cannabis-related businesses associated with the U.S. (e.g. aiding/abetting illicit trafficking); and customs violations for having cannabis in a vehicle or on a person.

The United States laws on admissibility are more complicated than many might imagine. We know, since this is what we do daily. As I told the Committee, cannabis continues to be listed as a Schedule 1 substance under the U.S. Controlled Substances Act, making it as a matter of law equal to cocaine, heroin, or L.S.D. A Schedule 1 substance is one which has no medical purpose and has a high propensity of abuse. I also acknowledged to the Committee that this is not the popular opinion of the majority of the States, based on voter initiatives. The conflict of federal and state laws will also likely present an issue at the border, should Canada legalize. I said I think there will be “growing pains” as the public and the border adjusts to such a significant change in Canadian law.

The hearing garnered significant attention in the Canadian media, with stories appearing in Global News, CBC, the Windsor Star, and many other outlets. I anticipate the border and legalization will continue to be a matter of public interest to both Canada and the United States, if Bill C-45 moves forward.

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California, Legalization, and Immigration

Wednesday, December 27th, 2017 by W. Scott Railton

On January 1st, California will join Washington State, Colorado, and others in legalizing the recreational use of marijuana. Proposition 64 was passed by the voters of California in November, legalizing possession of up to one dry ounce of marijuana. Federal government officials are already saying that they will continue to enforce the Controlled Substances Act, which treats cannabis the same as heroin and LSD. As with other legalized states, the federal/state conflict of laws will persist, uneasily.

One group caught square in the middle are the noncitizens.  Noncitizens include lawful permanent residents, temporary visitors, undocumented aliens and all others who are not U.S. citizens.  Noncitizens routinely have to deal with the Federal Government: immigration court proceedings, applications for immigration benefits (e.g. naturalization, work authorization, permanent residence, green card renewal), seeking entry to the U.S.; CBP checkpoints; visiting national parks; and so on.

Immigration law can be very harsh for the noncitizen when it comes to marijuana. We have seen people denied entry, denied green cards, and denied naturalization, all in relation to legalized marijuana. This year, I wrote extensively on Marijuana and Immigration for the American Bar Association’s Criminal Justice magazine.

In a nutshell, the federal government does not need a conviction to find a person inadmissible to the United States. Inadmissibility can be established with an admission to the essential elements of a controlled substance offense; a “reason to believe” a person is engaged in drug trafficking, or a family beneficiary of its proceeds; misrepresentation; a determination that a person is a drug abuser or drug addict; or for being inadmissible at time of entry. Employment in the budding industry can also have unintended consequences. The laws for removability are different but similar. The legalities can get real complicated, fast, but the point is marijuana and immigration do not mix well.

USCIS officers will  sometimes ask questions about the legal use of marijuana, and this may lead to the denial of adjustments of status and naturalization applications. CBP officers will also ask, and deny admission based on admissions. CBP checkpoints are another point of contact where the issue may arise.  Other things will trigger immigration questions, such as finding marijuana on a person or in their car based on a stop on federal land (e.g. National Park), admission to past illegal use, or marijuana involved in a non-removable offense, such as a DUI.  The agencies are inconsistent in their application of the law.

Legalization will be terrific for immigration in some regards. Minor marijuana convictions in the past have created a basis for removability. These prosecutions in state court will not continue, and thus, they will no longer form the basis for removability. This alone could lead to keeping more families together, decreasing court dockets, and increasing government focus on other concerns.

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Marijuana and the Border

Friday, April 21st, 2017 by W. Scott Railton

Today is April 20th, or 4-20, as marijuana legalization proponents like to say. More than half of the states have passed some form of legalization, usually by popular vote. Eight states have legalized recreational marijuana, again by popular vote. It is an astounding development in my lifetime, as the concept of legalization was quite radical little more than two decades ago.

I’ve been interested in how state legalization impacts noncitizens, since immigration is my area of law practice. Washington State and Colorado were the first to legalize recreational marijuana, back in 2012, and I knew this would present issues at the border, eventually. It seems now the issues are also coming up at U.S. Citizenship and Immigration Services and the Department of State’s consulates abroad.

I periodically speak and write on this topic.  I am very pleased to say that this month the American Bar Association published an article I wrote, entitled “Marijuana and Immigration,” in its Criminal Justice magazine. I also received a Freedom of Information Act request back this past week, from USCIS, on its policies concerning legalized marijuana. The pdf is over 1700 pages, but 1500 pages or so are redacted. We will appeal.

The issues continue to develop, and, unfortunately, most of the news is not good for noncitizens. DHS Secretary Kelly and Attorney General Sessions say they want to crack down on marijuana. The specifics are lacking, but I am hearing some tough reports. These include:

-Adjustment of status applications being denied for spouses of U.S. citizens, because they worked for marijuana dispensary in a marijuana-legal state.

-Naturalization application denied to a permanent resident of over 10 years, because they worked in the marijuana industry in Colorado, a fully legalized state

-Denial of entry in many cases to the U.S., for admitting to having used marijuana at some undisclosed point in the past, in a foreign or U.S. jurisdiction where it was known to be illegal. No conviction is required–just a voluntary admission to a border officer, medical examiner, consular official, or other government worker. A lot of people, including former presidents, have admitted to as much in the past, and publicly. Once denied admission, a waiver must be obtained from CBP’s Admissibility Review Office, for life. Canadians have a $585 filing fee. The waiver takes months to adjudicate.

-More bad news: reportedly, they are not necessarily going to grant the waiver. We’ve just started to hear of denials for these types of circumstances.

-Also, the word on the west coast is the local ports of entry will not admit anyone working in the industry. Of course, this means accountants, who may also have other non-marijuana clients; scientists who need to test products; architects for greenhouses; and the list of professionals can go on. This is of course a multi-million dollar industry, which indeed, pays taxes, even if the standard deductions aren’t available.

-I don’t expect Consulates to issue investor visas for the industry.

The federal government is anything but transparent on these issues. The state governments need to get vocal, and force the issues, so that travel and business can be predictable. Legislators in legalized states need to fight for these businesses and opportunities, because right now at the administrative level, things are not going well for the industry or noncitizens. There is a basic lack of justice and fairness, as persons think they are ok by being truthful and are in compliance with state laws, but the federal government is playing “gotcha” with good people.

 

 

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