Marijuana at the Canada–United States Border and the Criminal Waiver Process

By Catherine Dines, Esq.

In April 2017, the Canadian federal government introduced legislation with a goal of legalizing and regulating the use of recreational marijuana. If passed, the proposed Federal Cannabis Act would create rules for producing, possessing, and selling cannabis across Canada. Under the Act, provinces and territories will regulate distribution and retail of non-medical cannabis, minimum age, public consumption, personal cultivation, possession limits, and drug-affected driving in their respective jurisdictions.[1]

As Canada moves closer to legalizing marijuana, it is important to discuss the impact at the Canada-United States Border.  Not only are longer border wait times predicted as border agents spend more time questioning travelers about cannabis use and completing secondary inspections, but it could also mean an increased number of Canadians will be barred from entering the U.S. or denied participation in Trusted Traveler Programs.

Denial of Entry 

With the enactment of the Immigration and Nationality Act of 1952 (INA),[2]  the U.S. Congress established a variety of inadmissibility grounds to protect the interests of the United States. Congress considered waivers as a special remedy to the grounds of inadmissibility.[3] Congress later amended the INA in 1957, easing many stricter provisions of the earlier legislation,[4] and then once again tightened waiver requirements and availability in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).[5]

Under the current legislation, an individual can be deemed inadmissible due to a past conviction related to marijuana, including pardoned marijuana-related convictions. Specifically, an individual can be deemed inadmissible if that individual has a prior conviction for a violation of, or conspiracy or attempt to violate, any law or regulation of a state, the United States, or a foreign country related to a controlled substance as defined in Section 102 of the Controlled Substance Act (21 U.S.C. §802).[6]

Officers also have discretion to bar entry due to an individual’s use, possession, and distribution of marijuana, despite that individual not having a prior marijuana-related conviction. Officers can bar entry when:

  • A foreign national admits to acts which constitute the essential elements of any law or regulation of a state, the United States, or a foreign country related to a controlled substance as defined in Section 102 of the Controlled Substance Act (21 U.S.C. §802);[7]
  • An officer knows or has reason to believe that a foreign national:

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister,  conspirator, or colluder with others in the illicit trafficking in any such  controlled or listed substance or chemical, or endeavored to do so; or

(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible;[8]

  • An officer knows or has reason to believe that a foreign national has the intent to engage in unlawful activity under U.S. state or federal law;[9] and
  • A foreign national is determined by an officer to be a drug abuser or addict.[10]

As discussed below, certain foreign nationals may overcome inadmissibility if the foreign national is eligible, applies for, and receives a waiver.

Forms of Relief: Immigrant and Nonimmigrant Waivers

Under the INA, marijuana is treated differently than other controlled substances. Marijuana is the only controlled substance for which the INA specifies exceptions. For example, INA §212(h) provides an immigrant waiver for a “single offense of simple possession of 30 grams or less of marijuana” under enumerated conditions.[11]

For nonimmigrants, such as Canadians crossing the Canada-United States Border for business or pleasure, the INA provides a waiver under INA §212(d)(3).  There are a variety of factors in determining whether a waiver will be granted, including:

  1. Recency and seriousness of the activity or condition causing inadmissibility;
  2. Nature of the applicant’s reason for seeking entry;
  3. Positive or negative effects, if any, of the applicant’s entry on U.S. public interests;
  4. Whether the incident in question is isolated or there is a pattern of misconduct; and
  5. Evidence of the applicant’s reformation or rehabilitation.[12]

A waiver will only be valid up to the expiration of an underlying visa or a maximum of five years, whichever is shorter.[13] Even with a valid visa, once the waiver expires, Customs Border Protection (CBP) will no longer admit the foreign national to the United States.[14]

Conclusion

Foreign nationals with a history of drug-related convictions, including pardoned marijuana-related convictions, should seek counsel prior to intended travel across the Canada-United States Border. Foreign nationals, particularly Canadians, who are denied entry into the U.S. should act quickly upon denial of entry.

As the legalization of marijuana in Canada approaches, issues involving marijuana at the Canada-United States Border will increase. While each case of inadmissibility involving marijuana must be analyzed and addressed on an individual basis, waivers can be useful tools in ensuring that foreign nationals are able to cross the Border.

 [1] Cannabis Legalization, Ontario Ministry of the Attorney General (2018), https://www.ontario.ca/page/cannabis-legalization (last visited Apr 26, 2018).

[2] See Pub. L. 82-414 (June 27, 1952).

[3] See INS v. Errico, 385 U.S. 214, 218 (1966) (internal citations omitted).

[4] See Act of September 11, 1957, Pub. L. 85-316 (September 11, 1957).

[5] See Pub. L. 104-208 (September 30, 1996).

[6] INA § 212 (a)(2)(A).

[7] INA §212(a)(2)(A).

[8] INA §212(a)(2)(C).

[9] INA §212(a)(3)(ii).

[10] INA §212(1)(A)(IV).

[11] INA §212(h).

[12] 9 FAM §305.4-3(C)(b).

[13] 9 FAM §305.4-3(G)(2).

[14] Id.