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Littler LLP: Jorge Lopez, Shireen Karcutskie

Potential immigration consequences for workers and investors in the Canadian cannabis industry

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.
  1. It remains illegal to bring or transport marijuana, or marijuana products, across U.S. borders, including the border with Canada.
  1. If you or a family member has involvement in the legal marijuana industry, be aware of the limitations as stated above.
  1. Note that there is no clear guidance or bright-line test for determining an individual’s exposure to enforcement in this area.
  1. 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.

 

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