After years of civil litigation, U.S. Customs and Border Patrol has relented in federal court: No, participating in the legal Canadian cannabis industry will not bar you from entry to the U.S.
This was a hard-won admission, however, given the long-running back-and-forth between Seattle law firm Davis Wright Tremaine and the attorneys for CBP. And the delay did not come without cost. Numerous Canadian citizens had been barred entry to the U.S., dating back to 2018, due to a vague and penalizing policy focused solely on their employment within the legal cannabis space.
Davis Wright Tremaine’s lawsuit set out in 2019 to identify that very policy. Where was it recorded? What did it really say? Who had authorized it? Cannabis Business Times, in fact, filed a similar FOIA request for those records on May 7, 2018. As of this writing, that request remains “under agency review.”
But as the years wore on, the Davis Wright Tremaine lawsuit’s civil docket redounded again and again to unclear responses from CBP. The ongoing question, according to Judge Ricardo Martinez, was just how thoroughly CBP was searching its own internal records for a trace of this policy. As Martinez wrote in 2020: “On first look, and afforded the presumption of good faith, CBP's evidence appears to paint a clear picture of a reasonable and comprehensive response to Plaintiff's requests. However, the details are far hazier. Drawing reasonable inferences in favor of Plaintiff, the Court is left with too many questions to find that CBP's search was reasonable and adequate as a matter of law. First, CBP has not provided adequate detail of its search at almost every level.”
This debate over the physical search for CBP’s own internal records lasted several years, cementing the skepticism that brought Davis Wright Tremaine to file the lawsuit in the first place.
“DWT doubted that the agency's position had any basis in law or that the agency was using its enforcement powers in a permissible way,” according to an update published by the firm. “Agencies like CBP lack the authority to make new law or issue decisions regarding the official U.S. response to changes in foreign law.
“Following a successful summary judgment motion [in 2020], where the court found that CBP's justifications were inadequate, the parties entered discussions and DWT ultimately persuaded the agency to re-review the documents it provided. CBP recently produced a significant number of relevant documents and agreed to un-redact key portions of its internal Information Guide concerning ‘Legalization of Marijuana in Canada.’”
The CBP’s 2018 Information Guide is available here.
Chief among its entries, as the Davis Wright Tremaine team wrote: “CBP's internal guidance acknowledges that foreign nationals who work in legal foreign cannabis industries are not inadmissible and should not receive a lifetime ban for attempting entry, assuming their visit to the United States is unrelated to domestic or cross-border cannabis operations.”
In other words, merely working for the legal industry in Canada is not sufficient as grounds for preventing entry to the U.S.
That acknowledgment contradicts past statements by CBP official Todd Owen and past actions by CBP, which detained and barred Canadian citizens from entry to the U.S. in the event they were found to have some financial connection to the legal cannabis industry.
And yet cannabis remains a federally controlled substance in the U.S.
The CBP Information Guide does go on to assert that non-U.S. citizens “entering the United States to engage in the marijuana business” may indeed be barred. With that in mind, the Davis Wright Tremaine team cautions Canadian citizens, who may still be questioned at the border about their intentions—business or otherwise—within the U.S.