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Legal Marijuana “Next Door” in Canada Off Limits Here in the United States

Today, Canada became the second country in the world to legalize recreational marijuana use with the enactment of Canadian House Government Bill C-45. Pretty nice, right? Yes, it is. But citizens of Canada who travel to the United States under employment-based non-immigrant visas, visitor visas, and those seeking lawful permanent residency must be on notice: just because you can legally possess and distribute marijuana in Canada does not excuse you from the archaic and complex Immigration & Nationality Act (the “INA”).

First, you must remember never to try to enter the United States with marijuana, even if you lawfully bought it in Canada, regardless of whether you are crossing at a port-of-entry at the US-Canadian border, at Niagara Falls, or on a short flight from Toronto to Manhattan for a party weekend. Just don’t do it—you’re certain to violate more than America’s immigration laws.

Second, the INA prevents admission into the United States “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of. . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance. . . .” Look at the words closely. Convictions are not required. If a Canadian citizen is at an airport trying to enter the United States under an L-1 visa, or even as a visitor, and “admits having committed” or who “admits committing acts. . . relating to a controlled substance.” A controlled substance includes marijuana. I know this sounds crazy. It’s crazy, but it’s true. It is, without debate, the most widely used “drug” across the globe. In fact, a United Nations report released in 2017 provided a range of 182-million to 238-million globally who use marijuana regularly. And, many of them enter and exit the United States without issue. That is because, often, the question “never” came up. Or there was “no reason” for a Customs and Border Protection (CBP) agent to ask a question about marijuana. Or quite possibly, many assumed that use, however remote, “could never be proven,” “did not have to be reported,” or “was never a question that came up during certain immigration processes.”

Canada’s new law allows individuals above the age of 18 to possess up to 30 grams of marijuana in public and a minor under 18 to possess up to five grams of marijuana, and to grow up to four marijuana plants at any one time.

While the plants cannot be distributed, Canadian adults can distribute marijuana in an amount not exceeding 30 grams. The law does not necessarily prevent the distribution of up to 30 grams of marijuana on multiple occasions to multiple people and quite possibly, through a local Canadian family-owned marijuana market.

However, distribution is an entirely different story under the INA. For example, if a Canadian TN Visa employee who also “distributes” 30 grams of pot to four different friends once a week tells a CBP agent at a preclearance center in Canada, he or she could be banned for life from entering the United States by the decision of that one officer and a CBP local supervisor. This is because CBP agents must deny entry to any Canadian whom the agent “knows or has reason to believe” that “is or has been an illicit trafficker in any controlled substance. . . .” Again, marijuana is a controlled substance. Now, what is “illicit trafficking” is a legal question that is still working its way through America’s immigration and appellate courts. And there are splits among the federal appellate circuit courts. A split in circuit courts or a legal question that remains open to debate are not reasons to discredit the very broad scope and impact of the INA, particularly in today’s increased immigration enforcement measures.

Canadian citizens who opened marijuana shops today or who are posting pictures across social medial with marijuana joints in their hands while walking through the streets of Toronto, Montreal, Vancouver, or in the small towns of Saskatchewan, or those United States permanent residents on business in Canada who are using US corporate cards to buy marijuana for an upcoming dinner party – beware of the INA. What is legal in Canada and seems like a “non-issue” can have serious immigration consequences.

With the growth of foreign, state, and local laws permitting recreational and medicinal marijuana use, the conflicts between these laws and the complex and harsh INA have begun to surface. Changes are occurring daily, if not hourly. Norris McLaughlin has long been prepared for these changes and remains at the forefront of addressing any impact on immigration, whether inside or outside of the United States.

To learn more or if you have any questions about this post or any other immigration matter, feel free to contact me at rglahoud@norris-law.com.