US Immigration Law and New Marijuana Legislation

By Andy Semotiuk | November 27, 2013

Immigration lawyer Andy Semotiuk – Pace ImmigrationThere is an interesting Catch-22 when it comes to the laws governing travel and marijuana use in the United States. Federal U.S. laws prohibit the use of marijuana, but state laws, such as in Washington, have made it legal. A Canadian who uses marijuana might ask: which law will be applied to me?

This isn’t a question to be taken lightly. U.S. immigration laws deal very harshly with drug offences. For example, there is a lifetime bar to entry for anyone convicted of possession of a narcotic. There is no chance of receiving even a waiver to inadmissibility for such a conviction – no matter how old and what the circumstances, except it one instance: one conviction of mere possession of marijuana in an amount not exceeding one ounce. In short, you do not want to be associated in any way with drugs in terms of federal immigration laws.

Talking about drugs at the border in any way, whether those drugs are in
your possession or not, is definitely not in your best interest.

In addition, even if someone has not been convicted of a drug offense, but admits to the facts that would lead to such a conviction, that in itself is enough to bar entry to the United States. So, a Canadian traveling down to the USA admitting to their intention to indulge in recreational use of marijuana as allowed by state law will be blocked from entering the USA on that basis. This piece from the Canadian Press highlights the problem:

When pot sales begin next year in Washington, where citizens voted in 2012 to legalize marijuana, anyone 21 years or older will be able to purchase and possess an ounce of pot, whether they’re residents of the state or have come from farther afield. Voters in Colorado and, more recently, Portland, Maine, and several communities in Michigan have also approved
varying degrees of legalization.
But legal experts warn anyone heading into the United States planning to indulge in legal marijuana
could run into problems if they disclose those plans at the border, with customs officers who enforce federal, not state, laws able to use information about travellers’ pot smoking habits to turn them away or even bar them from entering indefinitely.

Two examples: Joe and his friend Bill living in Vancouver have learned of the new law coming into effect in Washington state regarding the recreational use of maijuana. They get in their car and drive down to the border on a Friday night to spend the weekend in Seattle. At the border, U.S. Customs and Border officials ask them where they are headed, and what is the purpose of their trip. Joe pulls out a copy of a newspaper article indicating that Washington state has passed laws relaxing the bar against use of marijuana. He says they are going down to try it out. Bingo. The two can be stopped at the border, and barred from entry.

Another scenario. Joe and Bill went down and had a good time. Then they decide to go again. This time they tell officials they smoked marijuana last weekend in Seattle. That is an admission of a federal offense in the United States. Now they will be turned back and told they will need a waiver to try to enter the USA again.

This is a complicated problem. Policy will have to be developed in the USA to deal with it. More policy is no doubt on the way. But remember this: talking about drugs at the border in any way, whether those drugs are in your possession or not, is definitely not in your best interest.