The legalization of cannabis has been a matter of some controversy in Canada. Some have worried about the social and health risks, while others have looked forward to it as an opportunity for new business ventures. Whatever perspective someone may have on the legalization of marijuana, it certainly will create a wide range of investment opportunities. This includes everything from service industries, production facilities and distribution networks. It has also led to the establishment of publicly-traded companies, whose share prices have reached dizzying heights.
Overlooked in all of the frenzy of business ventures and investment opportunities has been the US government’s view, and in particular, that of US Customs and Border Protection and US Citizenship and Immigration Services. News reports show people being barred from the United States due to their involvement in the marijuana industry. One publicized incident involved employees of an agricultural equipment maker whose products could be used in marijuana cultivation. Several of the company’s employees received life-time bans as they were found to be “drug traffickers.” Recent government statements cause additional concern. Todd Owen, the Executive Assistant Commissioner for the Office of Field Operations, was recently quoted in Politico as suggesting that not only would people who use marijuana be inadmissible to enter the United States, but also all those who work and even invest in the industry. He stated “Facilitating 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.” Predictably, this comment has created considerable panic.
Further compounding the confusion is the absence of formal direction or guidance from the US government as to how the law should be applied to individuals who use marijuana or who work or invest in the industry. US officers are consequently left to their own devices in interpreting the legislation and how it should apply.
The general provisions for determining who is inadmissible to the United States are outlined in Section 212 of the U.S. Immigration and Nationality Act of 1952 (INA). Several provisions may be applicable. First, INA §212(a)(2)(A)(i)(II), provides that individuals who have been convicted of, or who admit to having committed the essential elements of, a controlled substance offense are inadmissible. If one is found described under this section, that individual can be permanently barred from entering the United States. A conviction is not required under this provision, merely an admission of having committed the elements of the offense. Generally, this provision requires that the admitted conduct is illegal where it occurred. Admitting to marijuana use in Canada prior to October 17, 2018 may result in a bar while post October 17, 2018 use should not. However, given the wide latitude given to immigration officers, such a distinction may not be enough to preserve a person’s ability to enter the United States if the officer interprets the provision strictly.
In addition, even medical or legal recreational use may result in a bar to the United States if an officer applies INA §212(a)(1)(A)(iii). This provision makes a person inadmissible if they are determined to be a drug user or addict. Presumably, the use of medical marijuana would not make one a “drug user or addict,” while recreational use could.
Another area of potential concern arises from INA §212(a)(2)(C). This provision makes an individual inadmissible if an immigration officer has “reason to believe” that they are or have been an illicit trafficker in a controlled substance (a knowing assister, abettor, conspirator, or colluder). Individuals working or investing in the industry may find themselves described under this provision. Presumably, it would not apply to activities strictly located in Canada. Unfortunately, the lack of clear guidance on this point gives rise to a concern that it could be found to apply even to activities limited geographically to Canada. Certainly, Owen’s comments suggest this is a possible interpretation. More likely, it will apply to employees or investors in a Canadian company that also has activities in the United States.
Another provision that may give rise to concern is INA §212(a)(1)(A)(iii). Under this provision, a person is inadmissible if they are determined to have a physical or mental disorder and a history of behaviour associated with the disorder that may pose (or has posed) a threat to the property, safety or welfare of themselves or others. This provision is often used to deny entry to individuals who struggle with alcoholism. Indeed, a conviction or two for impaired driving can give rise to this presumption. This provision could apply if some type of harmful behaviour is associated with marijuana use, such as operating a vehicle while under the influence of marijuana.
In short, a US officer may use a range of provisions to deny entry to a Canadian who uses marijuana or who is involved in the cannabis industry. In the absence of specific guidance to the contrary, anyone who is either a user of marijuana or who is involved in the cannabis industry runs a risk of encountering issues at the US border. That risk can, depending upon the circumstances, include a life-time ban from entering the United States. Until further guidance or direction is received, prudence and caution are the recommended courses of action.
ADDENDUM:
As this article was going to publication, US Customs and Border Protection issued a Statement on Canada’s Legalization of Marijuana and Border Crossing. In short, the key component of the statement is as follows:
Generally, 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.
A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.; however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.
It appears that as long as the employment activity is restricted to Canada, there will “generally” not be an immediate finding of inadmissibility. The use of the term “generally” likely means that much of the article’s discussion on the various risks still applies. However, the statement is quite clear that if the trip to the US is related to the marijuana industry, the person may be inadmissible. As there is no formal definition as to what is included in activities that may be “related to the marijuana industry”, a person should be very cautious going to the U.S. for any business purposes in any way related to the industry. Attending conferences, performing brand promotion, raising investment funds and other similar activities may well qualify as being sufficiently related to the marijuana industry and result in the person being found inadmissible to the U.S.