In mid-October 2018, recreational use of marijuana became legal across Canada. In advance thereof, on October 9, 2018, U.S. Customs and Border Patrol warned that if “[a] Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada … is found to be coming to the U.S. for reason related to the marijuana industry, [he or she] may be deemed inadmissible.” And, by mid-December 2018, there were public reports that Canadian investors in the cannabis industry had been permanently barred from entering the United States because they attempted to travel to the United States for a cannabis conference.

Clearly, for those in the cannabis industry, crossing from Canada into the United States has become a risky proposition. A direct result of the tension between U.S. and Canadian law, as well as the conflict between federal and state laws within the United States, where marijuana remains illegal at a federal level, the present situation is simply untenable.

Thankfully, one U.S. congressman has introduced legislation intended to remedy at least part of the problem.

Overview

In mid-December 2018, U.S. Representative Earl Blumenauer (D-Ore.) introduced the “Maintaining Appropriate Protections for Legal Entry Act of 2018” (H.R. 7275), which is also known as the “MAPLE Act of 2018.” The stated purpose of this legislation is to amend U.S. federal immigration law to “clarify the admissibility and deportability of aliens acting in accordance with State and foreign marijuana laws.”

If enacted, the MAPLE Act of 2018 would amend U.S. law so that an alien who, for example, commits an act outside of the United States that would “constitute the essential elements of … a violation” of the federal Controlled Substances Act, 21 U.S.C. § 801, et seq., “related to marijuana” would no longer be deemed inadmissible to the United States so long as the conduct at issue “was lawful in the State, Indian Tribe, or foreign country in which the conduct occurred, or a law or regulation of a State, Indian Tribe, or foreign country related to marijuana, which conduct was subsequently made lawful under the law or regulation of such jurisdiction.”

MAPLE Act of 2018

The MAPLE Act of 2018, which was introduced in the U.S. House of Representatives on December 12, 2018, would amend the federal Immigration and Nationality Act (the INA). The amendments would affect non-U.S. citizens seeking to enter the United States (that is, admissibility), as well as those hoping to remain in the country (that is, deportability).

Admissibility – Entering the United States

Specifically, the MAPLE Act of 2018 would amend 8 U.S.C. § 1182(a)(2) by adding the language that appears in italics immediately below:

(a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR ADMISSION [-] Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: …

(2) CRIMINAL AND RELATED GROUNDS

(A) Conviction of certain crimes

(i) In general [-] Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) 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 (as defined in section 802 of title 21), except in the case of a law or regulation of the United States related to marijuana, which conduct was lawful in the State, Indian Tribe, or foreign country in which the conduct occurred, or a law or regulation of a State, Indian Tribe, or foreign country related to marijuana, which conduct was subsequently made lawful under the law or regulation of such jurisdiction,

is inadmissible.

C) Controlled substance traffickers [-] Any alien who the consular officer or the Attorney General knows or has reason to believe—

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), 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, except with respect to trafficking, sale, or distribution of marijuana if the conduct was lawful or subsequently made lawful in the State, Indian Tribe, or foreign country in which it occurred …

is inadmissible.

Deportability – Staying in the United States

The MAPLE Act of 2018 also would amend the INA by adding the language that appears in italics immediately below to 8 U.S.C. § 1227(a)(2)(B)(i):

(a) CLASSES OF DEPORTABLE ALIENS [-] Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: …

(2) CRIMINAL OFFENSES …

(B) Controlled substances

(i) Conviction Any alien who at any time after admission has been convicted 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 (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, an offense under a law or regulation of the United States related to marijuana, which conduct was lawful in the State, Indian Tribe, or foreign country in which the conduct occurred, or an offense under a law or regulation of a State, Indian Tribe, or foreign country related to marijuana, which conduct was subsequently made lawful under the law or regulation of such jurisdiction, is deportable.

Definition of “aggravated felony”

Finally, the MAPLE Act of 2018 would also affect a similar change to the INA’s definition of “aggravated felony,” which is codified at 8 U.S.C. § 1101(a)(43)(B). It would carve out from that definition the “trafficking, sale, or distribution of marijuana if the conduct was lawful or subsequently made lawful in the State, Indian Tribe, or foreign country in which it occurred.”

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Therefore, if the MAPLE Act of 2018 is enacted and a non-U.S. citizen (such as a Canadian) is involved in the legal cannabis industry in their home country (such as in Canada) then, on that basis alone, that individual should no longer be deemed inadmissible to the United States. Similarly, on that basis alone, that individual should no longer be subject to deportation from the United States. Far from just a fig leaf, such a change in American law certainly would make it less risky for Canadians involved in their country’s cannabis industry to come to the United States for cannabis-related reasons – for example, to attend a cannabis conference.

The legislation was referred to the House Committee on the Judiciary on December 12, 2018. Eight days later, on December 20, 2018, U.S. Representative J. Luis Correa (D.-Cal.) became a co-sponsor of the legislation. To date, he is the only co-sponsor of this legislation.

Those involved in the legal cannabis industry in Canada, the cannabis industry in the United States, and the legal cannabis industry throughout the world will want to pay careful attention to this legislation. Passage of the MAPLE Act of 2018 would be a meaningful development for the entire industry.

A Word of Caution

To be clear, the MAPLE Act of 2018 has not passed Congress or been signed by the president. It is not currently law in the United States. Unless and until it or similar legislation becomes law, crossing the U.S.-Canadian border (or attempting to enter the United States anywhere) remains a risky venture for participants in a foreign country’s cannabis industry. Therefore, Canadian citizens involved with their country’s legal cannabis industry should consult counsel prior to attempting to enter the United States.