How Canada's Legalization of Cannabis at the U.S. Border May Impact Certain Canadians Entering the United States

November 5, 2018

With the legalization of cannabis in Canada comes a new wave of uncertainty at U.S. ports of entry.

In response to Canada's legalization of cannabis, the U.S. Customs and Border Protection (CBP) agency released a statement on October 9, 2018 clarifying the U.S. position on Canadian citizens "working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S." As the CBP notes, those Canadians entering the United States "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" and, in other words, denied entry to the United States.

This statement strengthens the already broad authority CBP agents have at U.S. borders. According to the Controlled Substance and Drug Trafficking Grounds of Inadmissibility under Section 212(a)(2) of the Immigration and Nationality Act, any foreign national who an officer "knows or has reason to believe" is involved in the manufacturing, distributing, dispensing, importing or in possession of cannabis, can be deemed inadmissible and barred from entering the United States. In making this determination, CBP officers are able to use several tools, including taking possession of your phone and computer and demanding passwords for social media accounts. Past criminal history, overall appearance, manner of dress and smell may also trigger additional questioning.

While CBP officials have advised that they are not planning to interrogate every Canadian traveler about marijuana use, other factors may cause officials to raise the topic. For example, CBP agents commonly ask travelers what they do for a living, and those Canadians who work in the marijuana industry can be denied U.S. admission.

In addition, if a traveler admits to past use of cannabis, even if legally used in Canada, the traveler can also be found inadmissible. Note that if denied entry into the United States, CBP officers will typically allow the traveler to "voluntary withdraw" from the border, but regardless, a record will be kept by CBP and that traveler will not be allowed to return to the United States without a waiver.

Though more than half of U.S. states allow for some form of medical marijuana and/or cannabis decriminalization, U.S. federal law controls the border for customs, immigration and regulatory purposes, as well as at U.S. consulates regarding visa applications. As marijuana is still considered a banned controlled substance under U.S. federal law, those involved with the Canadian cannabis business should be prepared for additional scrutiny at U.S. ports of entry.

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