Even With Updated U.S. Border Policy, Canadian Cannabis Investors and Employees See Risks

Even With Updated U.S. Border Policy, Canadian Cannabis Investors and Employees See Risks

Columns - Guest Column

Risks of the U.S. Commercial Cannabis Industry for Non–U.S. Citizens

Editor's Note: CBP issued an updated statement on Oct. 9 announcing that Canadian cannabis workers will be allowed to cross the U.S. border as long as the reason of their trip is not cannabis-related. Anyone who admits to consuming cannabis in Canada, or who is looking to participate in the U.S. cannabis industry while not a U.S. citizen, can still be turned away and/or banned from entering the country.

With the growing trend toward legalization, cannabis presents a new and fresh business avenue. Although the blossoming industry seems enticing for potential investors and employees, non-U.S. citizens may want to resist the temptation to join the U.S. industry, even while residing in states which have legalized the drug, as participation could postpone entry to the country—possibly forever.

The legal environment surrounding cannabis in the U.S. proves confusing for both citizens and non-citizens. That’s because three different primary sources of law play into this situation: the Controlled Substances Act (CSA) in federal criminal cases, the Immigration and Nationality Act (INA) for federal civil cases, and state legalization statutes and regulations.

Scheduling Error

The majority of states allow for limited use of medical marijuana under certain circumstances. The CSA, meanwhile, counterintuitively categorizes marijuana as a Schedule I drug, placing it alongside heroin, LSD, ecstasy and peyote in a category of drugs with no accepted medical uses.

For immigration, the consequences of this classification are severe. The Schedule I designation makes it a federal offense to possess, gift, sell, cultivate, import or export cannabis. This includes any activity, commercial or otherwise, involving any part or derivative of the plant. One does not need to be on federal property or travel between states to be guilty of a federal drug crime. The U.S. Supreme Court has held that even growing or using marijuana at home for medical purposes, in accordance with state law, is regulated by the CSA.

While the INA provides a petty offense exception for possession of 30 grams or less, any other cannabis offense could result in up to 10 years in prison and possible deportation. Memos and appropriation riders (Cole Memo, Rohrabacher-Blumenauer Amendment) have prevented more domestic law enforcement activity by the U.S. Department of Justice (DOJ) toward conduct lawful under recreational and medical state marijuana laws. Since 2014, Congress has passed appropriations riders that bar the DOJ from using federal funds to bring criminal prosecutions based on conduct that is permitted by state medical marijuana laws. This funding prohibition effectively bars federal prosecution in medical marijuana cases. However, Attorney General Jeff Sessions would like this rider to end.

In 2013, the DOJ issued memoranda that requested that U.S. Attorneys refrain from prosecuting conduct that was lawful under state recreational laws as well. Sessions has since rescinded these memos. The U.S. Attorney General has granted each U.S. Attorney the freedom to prosecute marijuana use, even where permitted under state laws.

Visa Not Accepted

In addition to the CSA, the INA also restricts non-U.S. citizens’ ability to use and possess marijuana while in the U.S. The Department of Homeland Security (DHS) oversees immigration in the U.S. This includes the U.S. Customs and Border Protection (CBP), which operates the borders; U.S. Citizenship and Immigration Services (USCIS), which manages immigration benefits such as immigrant and non-immigrant petition and naturalization applications; and U.S. Immigration and Customs Enforcement (ICE), which enforces immigration law within the U.S., including deportation actions, raids and other investigations.

Numerous U.S. visas allow foreigners to come to the country for business and tourism, including:

  • the E treaty trader or investor visas for certain non-U.S. citizens who want to trade or invest in a business,
  • the EB-5, which provides a means for eligible immigrant investors to become “green card holders” after investing $1 million dollars,
  • the L intracompany transfer,
  • the H-1B specialty occupation,
  • an extraordinary ability visa in science or business (O-1).
  • For non-agricultural temporary workers, the H-2B visa is also a possibility.

All these visa options are off the table for non-U.S. citizens who are entering the U.S. to engage in cannabis-related activity, regardless of the legality of cannabis in the state they are visiting because of cannabis’s CSA classification.

CBP is a foreigner’s first encounter with DHS when seeking entry to the U.S. CBP has broad authority to seize and search electronic devices of anyone seeking entry to the U.S. It reported searching 30,200 devices at the U.S. border in 2017 alone (a 60-percent increase compared to 2016). Twenty percent of those searches were on devices owned by non-U.S. citizens. As a result of these electronic searches, non-U.S. citizens could be deemed inadmissible simply by communicating (via email, Facebook, texts, etc.) a desire to consume cannabis or otherwise participate in the cannabis industry while in the U.S. The Constitution may not prove a viable argument at the border. Although the Constitution protects all people, the plenary power doctrine of the federal government has broad powers to adopt what would appear to be unconstitutional policies, whether that be the right to free speech or the right to unreasonable search and seizures. But due in large part to the plenary power doctrine, the executive branch of the U.S. can determine many polices and protective measures regarding control at U.S. borders and national security. The federal courts may interpret this differently in the future, but as of now, non-U.S. citizens should be prepared at the border.

CBP’s broad authority to search phones and other electronic devices at the border can cause serious immigration issues. For example, a Chilean woman recently flew to the U.S. to visit her long-time boyfriend, a trip she has made numerous times in the past. At Los Angeles International Airport (LAX), CBP officers stopped and searched her, including her phone, where they discovered photos of a Colorado dispensary. Officers asked if she tried cannabis while on her previous visit to Colorado, and she replied, “Yes, it’s legal there.” With that moment of honesty, the woman was sent on a plane back to Chile and received a lifetime ban from entry to the U.S.

IN A Lot of Trouble

The INA lays out a complex system of laws regarding inadmissibility and deportability. INA set forth grounds for deportation and possible waivers or defenses to charges of deportation. Certain charges depend on an individual’s status in the U.S. (i.e., immigrant or non-immigrant, legal or illegal). The INA refuses to admit anyone with a conviction for a violation (or a conspiracy or attempted violation) of any law or regulation related to a controlled substance, as defined in the CSA. Additionally, the INA broadly defines “conviction” as formal judgment of guilt of an alien entered by a court or, if adjudication has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere (Latin for “no contest”) or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered that some form of punishment, penalty or restraint on the alien’s liberty be imposed.

Even if a conviction is pardoned or expunged, it can still be used for inadmissibility findings and deportation if officers discover the arrest through interviews, questionnaires or other means. Federal law defines what may be expunged in an immigration context, often allowing immigration officers to see otherwise “sealed” records.

In addition, lawful permanent residents are deportable if convicted of an aggravated felony at any time after entry. Aggravated felonies include specific classes of convictions in the INA, which may or may not be felonies under other state or federal laws. Illicit trafficking in a controlled substance is per se an aggravated felony, and any non-citizen working in a dispensary or cultivation business would fall under that definition.

Additionally, a non-U.S. citizen may be barred from U.S. entry merely if the government has reason to believe (based on reasonable, substantial and probative evidence) that the individual is connected to illicit trafficking in any controlled substance. Recently, at the 2018 AILA Annual Conference on Immigration Law in San Francisco, a foreign national relayed what happened to him at the border. He works in security protection and advises many clients, including cannabis companies, on security issues. Due to some of the materials on his social media, the CBP officer was concerned that he was here to counsel and advise cannabis companies in the U.S. on how to strategically and efficiently guard their merchandise. Ultimately, he was allowed in for five days because he had tickets and hotel reservations to Disney and was with his family. Nevertheless, one must be very careful as aiding and abetting an illegal activity is taken seriously. Even services that are not directly related to cannabis production and appear to be peripheral may be subject to scrutiny.

Canada’s legalization of recreational cannabis threatens to create even more headaches for those wishing to enter the U.S., either as tourists or on a more permanent basis. Given that CBP officers need only a “reason to believe” that an individual will violate U.S. law to deny entry (potentially with a lifetime ban), admitting to using cannabis, even legally in Canada, could be enough to lead border patrol officers to “reasonably believe” that the individual seeking entry will violate the law by using cannabis while in the U.S. This applies even more so to individuals involved in cannabis businesses, as CBP officers may assume that the potential entrant plans to further their business endeavor in the U.S.

Finally, immigration law requires “good moral character” to obtain many immigration benefits including becoming a naturalized citizen. A conviction or an admission of facts, which constitute the essential elements of a crime involving moral turpitude (which includes crimes involving intent to steal or defraud, sex offenses and trafficking of a controlled substance), legally prevents an individual from showing “good moral character.” Furthermore, a conviction of a crime involving moral turpitude within five years automatically subjects a person to deportation and a ban from entering the U.S. for at least 10 years.

So long as there is a commercial element, participating in the cannabis industry remains a serious crime in immigration law—even if the sale occurred in a context in which the non-U.S. citizen reasonably believed his or her actions to be lawful (i.e., a successful Colorado dispensary owned and operated by a non-U.S. citizen).

Shimon Abta provides a final cautionary tale. Abta legally resided in the U.S. with his new wife on a B-1 visa (temporary business visitor). When he applied to become a permanent resident (with a green card), the USCIS discovered Abta had a medical marijuana card from Nevada and worked in the cannabis industry in Israel as an agronomist. Applying federal law, the USCIS threatened Abta with felony trafficking charges and forced him to leave the country, despite Abta’s clearly lawful intent. To this day, Abta has been unable to return to the U.S.

Editor’s note: The authors gratefully acknowledge the contributions to this article made by Brendan Krimsky, Columbia Law School, J.D. expected 2020.

Patricia L. Gannon is a partner in Greenspoon Marder’s immigration and naturalization practice group.

Marcela Bermudez is senior counsel in Greenspoon Marder’s immigration and naturalization practice group.

Top photo courtesy of Adobe Stock