Although the United States and Canada are neighbors geographically, they are worlds apart when it comes to marijuana. While at the federal level in the United States it remains “unlawful for any person knowingly or intentionally … to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance,” recreational marijuana became legal throughout Canada last week.

Of course, as a result of legalization at a state level, there is a booming cannabis industry in the United States. Many in the United States have been carefully watching the Canadian experience, with an eye toward doing business there. In turn, at least part of the United States remains an untapped market, which may be of interest to Canadians. However, the U.S. government is not prepared to open its doors – or its borders – to the Canadian cannabis industry just yet. Far from it. As a result, physically entering into the United States from Canada may be a risky venture for those in the cannabis industry.

Right to enter the United States

American citizens: Regardless of their actions abroad, U.S. citizens should be able to re-enter the United States. As noted by one federal district court, the U.S. Supreme Court “has described the right of an American citizen to return to the United States from abroad as ‘absolute.’” Fikre v. Federal Bureau of Investigations, 23 F. Supp. 3d 1268, 1282 (D. Or. 2014) (quoting Tuan Anh Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53, 67 (2001)).

Indeed, during an October 17, 2018, press conference, Christopher Perry, Director of Field Operations for U.S. Customs and Border Protection (CBP), stated that CBP officers “would not refuse a U.S. citizen’s entry to the United States” (emphasis added).

However, be careful: the right to return to the United States does not mean that a U.S. citizen will be free of liability for any involvement in the Canadian cannabis industry. Notably, it remains illegal for a U.S. citizen – or anyone else – to bring marijuana into the United States from abroad. See 21 U.S.C. § 952(a). Moreover, a U.S. citizen could also face other potential liability under the federal Controlled Substances Act, anti-money laundering statutes, and/or other statutes. Consideration of that liability is outside the scope of this client alert, which focuses on border-crossing issues. Anyone with concerns about such liability should definitely consult counsel.

One other note: Although there are limited grounds for revocation of naturalization, see 8 U.S.C. § 1451, naturalized U.S. citizens involved with the Canadian cannabis industry may be at an increased risk of adverse consequences upon their return to the United States, especially in the current political climate. For example, the Associated Press has reported that just this year, “the U.S. government agency that oversees immigration applications is launching an office that will focus on identifying Americans who are suspected of cheating to get their citizenship and seek to strip them of it.” While unrelated to the legalization of cannabis in Canada, this development is still noteworthy for present purposes. As such, a naturalized U.S. citizen considering becoming involved with the Canadian cannabis industry should certainly seek additional legal counsel.

Canadian citizens: Unlike American citizens, Canadians, like other foreign nationals, do not have an automatic right to enter the United States. For example, federal law makes inadmissible to the United States any alien who is “a drug abuser or addict.” 8 U.S.C. § 1182(a)(1)(A). It also makes inadmissible any alien “who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law of regulation of … the United States … relating to a controlled substance ….” 8 U.S.C. § 1182(a)(2)(A).

In an October 9, 2018, statement, CBP explained that it “enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana.” It explained further:

Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

The CBP statement continued:

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

CBP then explained that the decision whether to allow a Canadian citizen involved with the cannabis industry to enter the United States will turn in large part on that individual’s reason for wanting to enter: 

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. 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.

Lying about past drug use, or one’s involvement in the cannabis industry, is not a way around U.S. law. Federal law states that “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure … a visa, other documentation, or admission into the United States … is inadmissible.” 8 U.S.C. § 1182(a)(6)(C). 

During the October 17 press conference CBP Director of Field Operations Perry stated that CBP does not anticipate routinely asking Canadian citizens seeking to enter the United States questions about marijuana use but did add that “CBP officers have broad discretion on the type of questions they could ask.” He also explained that the admissibility of Canadian citizens who admit to using marijuana will be made on a “case-by-case decision based on what is presented to the [CBP] officer.”

Moving forward

U.S. Representative Lou Correa (D-Cal.) has been an advocate for addressing these border-crossing issues. Not satisfied with the recently articulated CBP policy, Rep. Correa told the CBC, “It’s my hope that as soon as the [U.S. midterm] elections are over, we can sit down and talk about what is it that [the U.S. Department of Homeland Security] needs from us, Congress, to move forward on this issue. I’m hoping that they come up with some suggestive legislative language. Otherwise, we'll run with our own.”

Regardless, it is likely that both U.S. law and policy will continue to develop in this area. Accordingly, both American and Canadian citizens will want to pay careful attention. American citizens should consult with counsel before doing business in the Canadian cannabis industry, and, certainly, before leaving the United States to work in or with that industry. Likewise, Canadian citizens involved with their country’s legal cannabis industry should consult counsel prior to attempting to enter the United States.