CBP Updates Statement on Canadian Legalization of Marijuana and Determining Admissibility

With the Canadian legalization of marijuana mere days away, CBP has issued an updated statement on how Canada’s new law will affect Canadians’ admissibility to the U.S. and crossing the border. The updated statement is available here.

CBP’s updated statement contradicts previous information provided by the agency and reflects a change of tune on key issues related to individuals involved in the Canadian cannabis industry. This guidance details how officers will be determining who’s admissible and who’s not, and the consequences a traveler will face if deemed inadmissible. It should be noted that this statement was quietly released; on its website, CBP simply replaced a page containing a statement released on September 21. Our blog on the initial statement can be found here.

If you plan on crossing the border after Canadian legalization of marijuana goes into effect on October 17, here are some key points on how CBP should be making admissibility determinations:

• If marijuana use is legal in Canada and an individual uses marijuana in a legal context, could this be used as the basis of determining inadmissibility?

Simply making a statement that you used marijuana legally in Canada should not make you inadmissible to the U.S. for a controlled substance violation. In fact, generally stating that you used marijuana in the past is not an admission of a controlled substance violation as this statement may or may not lead to facts that could constitute a controlled substance violation.

In order for a statement to qualify as an admission of a controlled substance violation, CBP must:

A.  Provide an adequate definition of the crime, including all of the essential elements.

B.  Explain the definition to the person in terms he or she understands, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed.

C.  Give the person a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings must be recorded verbatim.

D.  The person must then admit all of the factual elements which constituted the crime.

E.  The person’s admission of the crime must be explicit, unequivocal and unqualified.

With that being said, Canadians should avoid engaging in marijuana use in the U.S. even in jurisdictions it is legal and should be mindful that marijuana remains illegal federally in the U.S. when questioned by CBP. Additionally, Canadians should be aware that CBP does have the discretion to bar “abusers” of drugs banned in the U.S. including marijuana. Technically any level of use is considered abuse, but occasional recreational users should be okay coming to the U.S.

• If an individual works and invests in the legal Canadian cannabis industry, could this be used as the basis of determining inadmissibility?

Thankfully, CBP’s latest statement provides greater clarity of this very issue. CBP now says that “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.” This portion of the policy is the polar opposite of a statement released by CBP two weeks ago.

However, CBP’s new statement does go on to say that “if a traveler is found to be coming to the U.S. for reasons related to the marijuana industry, they may be deemed inadmissible.”

In addition to being denied admission, CBP states that “seizure, fines, and apprehension” may be the result of “crossing the border or arriving at a U.S. port of entry in violation” of U.S. federal controlled substance laws.

Travelers who are concerned about how CBP’s position on Canada’s legalization of marijuana will affect their admissibility to the U.S. should consult a qualified immigration attorney. If you need advisement on this issue or are found inadmissible, please contact us at (716) 854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

What to know with marijuana becoming legal in Canada next week

SRW Border Lawyers in the News – Zabrina Reich, Managing Partner at Serotte Reich in Buffalo, NY,  recently made an appearance on Buffalo’s Channel 7 evening news to provide insight on the effects of the upcoming legalization of marijuana in Canada.  

CBP Issues Statement on Legalization of Marijuana in Canada and Crossing the Border

U.S. Customs and Border Protection (CBP) recently released a statement on Canada’s legalization of marijuana warning that “working in or facilitating the proliferation of the legal marijuana industry in the U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.”  Although medical and recreational marijuana may be legal in some states and Canada, the sale, possession, production and distribution of marijuana (or activities the facilitate the same) remain illegal under U.S. federal law. CBP unequivocally states that Canada’s legalization of marijuana will not change their enforcement of U.S. federal laws regarding controlled substances. CBP advises that crossing the border or arriving at a U.S. port of entry in violation of this U.S. federal controlled substance law may result in seizure, fines, and/or arrest and impact inadmissibility.  

CBP Officers will be responsible for making determinations on admissibility and whether any regulatory or criminal enforcement is appropriate based on the known facts and circumstances. 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 U.S., or a foreign country relating to a controlled substance, is admissible to the U.S.

SRW Border Lawyers will be closely monitoring the impact of the legalization of marijuana in Canada and crossing the U.S. border. We will also be providing supplemental blogs on this hot topic.

USCIS to Begin Enforcing New Policy Memo on Notices to Appear

On October 1, 2018, USCIS is set to begin implementing their new policy memorandum for referring cases and issuing Notices to Appear (NTA) in cases involving inadmissible and deportable aliens. USCIS advises that it will be taking an incremental approach to implementing the memorandum which was initially released in June of this year.

A Notice to Appear (NTA) is the first step in initiating removal proceedings and is issued to inform an individual that they are to appear before an immigration judge. Starting October 1, 2018, USCIS may issue NTAs on denied status-impacting applications which include applications to adjust status (Form I-485), applications to extend/change nonimmigrant status (Form I-539), among others.

Pursuant to the new policy memorandum, USCIS will send denial letters for status-impacting applications and if applicants are no longer in a period of authorized stay, and do not depart the US, an NTA may be issued. USCIS advises that they will be providing details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate their departure from the US.

Notably, employment-based petitions and humanitarian applications and petitions are not subject to the June 2018 NTA Policy Memo at this time and USCIS has indicated that existing guidance for these case types will remain in effect. USCIS has also indicated that they will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and that there has been no change to the current processes for issuing NTAs on these case types.

So, what types of cases does this policy memorandum affect if an individual is deemed removable?

• Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence that the applicant abused any program related to receiving public benefits.

• Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability.

• Cases where USCIS denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense. 

• Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

What types of cases remain unchanged by the USCIS policy memorandum?

• Cases involving national security concerns.

• Cases where NTA issuance is required by statute or regulation.

• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal would result in an individual having no other lawful immigration status.

• Cases involving deferred action for childhood arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. (There is a separate policy memorandum that applies to cases involving DACA recipients and requestors.)

USCIS will be providing updates and information on the implementation of their new NTA Policy Memo on their website.  If you have questions regarding USCIS’ new NTA Policy Memo and/or how it may impact you, please reach out to our office to schedule a consultation.