Rick Proctor via Unsplash.com
Pictured: Cannabis plant


By Matthew Itzkowitz

Just last month, our friendly neighbor to the north, Canada, officially legalized recreational use of cannabis.[1] While Canadian citizens were celebrating this momentous occasion, President Donald Trump’s administration internally discussed its policy regarding Canadian citizens who try to enter the United States and admit to having legally ingested cannabis or invested in the Canadian cannabis industry.[2]  In the end, U.S. Customs and Border Protection (CBP) released a statement affirming that it would not adjust current U.S. border entry policies that allow border protection agents to ask questions related to drug use in the wake of Canada legalizing recreational cannabis.[3] While the United States has every right to stringently enforce the Immigration and Nationality Act, which bans travelers who admit to working in the cannabis industry, investing in the cannabis industry, or simply using cannabis (pot brownies included), it may result in negative economic consequences for the United States.[4]

Current law gives broad discretion to CBP to ask questions to those seeking entry into the United States on just about any topic.[5] Further, the Supreme Court has repeatedly held that the United States has the authority to exclude aliens from entering the country without affording them due process and that Congress has broad authority to pass legislation restricting access to those seeking admission to the United States.[6] One question that may be asked of those seeking entry into the United States is whether they have ingested cannabis or invested in cannabis in Canada.[7] While it is now legal to ingest recreationally or invest in cannabis in Canada, it is still a Schedule I drug and federally illegal in the United States.[8] If visitors to the United States admit to breaking United States law, even in another country, they may be barred from entering the United States for life.[9] In that case, a visitor’s only form of due process is to apply for a waiver I-192, which would allow entry into the United States for noncitizen visitors.[10] However, the cost of the waiver is high, at $930 if filing with the United States Citizenship and Immigration Services (USCIS) or $585 if filing with CBP, and simply applying for the waiver does not guarantee the United States would grant it.[11]

Although Congress does have broad discretion to admit or deny aliens from entering the United States, it is not in the economic interest of the United States to bar Canadian citizens from entering the country over the use of or investment in cannabis.[12] In 2016, Canadians spent almost $20 billion in tourism, alone, in the United States; they delivered the largest inbound travel market to the United States with 19.3 million visitors, which is about fifty-three percent of Canada’s total population.[13] A Canadian study in early 2018 found that fourteen percent of the total population had ingested a form of cannabis in the prior three months, with fifty-six percent of those surveyed admitting to ingesting cannabis daily or weekly.[14] The number of Canadian citizens who will be ingesting a form of cannabis is bound to go up over the next few years.[15] On the first day of legalization, Canadian cannabis dispensaries nearly ran out of their supply of cannabis products.[16] Further, with companies such as Coca-Cola and PepsiCo eyeing entry into the Canadian cannabis market with products such as cannabidiol (CBD) infused beverages, the market will be opening to a whole new group of consumers.[17]

Barring Canadian citizens from entry into the United States simply because they ingested marijuana legally in their country is not only contrary to the actual purpose of U.S. immigration laws but will soon become an impractical policy to police.[18] The purpose of asking about illegal substances at the border is to prevent the mass transportation and distribution of illegal drugs into the United States.[19] Barring Canadians who have consumed drugs legally in their own country does not address the underlying issue of drug trafficking and drug consumption in the United States, especially if the non-citizens in question do not have cannabis on their person. Instead, the United States’ broad stroke approach could be preventing law-abiding Canadian citizens from entering the United States for tourism, business, or to visit family.  It is completely impractical for the United States to stringently enforce its border policies on Canadians who have simply ingested or invested in legal marijuana in Canada because it would force Canadians to lie at the border, and it would also have adverse effects on the economy.[20]

In the United States, nine states and the District of Columbia have legalized recreational marijuana, and thirty-four states have legalized marijuana for medical purposes.[21] To bar Canadian citizens who have ingested marijuana, whether recreationally or medically, is wholly hypocritical, especially if Canadians are not in possession of cannabis at the time of their border crossing.  The issue of cannabis is not going away, and it is time for the federal government to catch up.

[1] See generally Cannabis Act, S.C. 2018,c16 (Can.). See also Dan Bilefsky, Legalizing Recreational Marijuana, Canada Begins a National Experiment, N.Y. Times (Oct. 17, 2018),https://www.nytimes.com/2018/10/17/world/canada/marijuana-pot-cannabis-legalization.html.

[2]  SeeCanada Becomes Second Nation to Legalize Recreational Cannabis, BBC (Oct. 17, 2018), https://www.bbc.com/news/world-us-canada-45806255(becoming only the second developed nation to legalize recreational marijuana); Press Release, U.S. Customs and Border Protection, CBP’s Statement on Canada’s Legalization of Recreational Marijuana and Crossing the Border (Oct. 9, 2018) [hereinafter Press Release].

[3] See Press Release, supra note 3.

[4] See 8 U.S.C. § 1182(a)(2) (2018). See also Arizona v. United States, 567 U.S. 387, 395 (2012) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)).

[5] See 8 U.S.C. §§ 1182, 1225(a)(5) (2018).

[6] Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”); see, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)) (“This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.”); Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972) (quoting Boutilier v. Immigration and Naturalization Serv., 387 U.S. 118, 123 (1967)) (“The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’”)); Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953) (“Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”).

[7] See 8 U.S.C. § 1225 (a)(5) (2018) (“[A]n applicant for admission may be required to state under oath any information sought by an immigration officer regarding . . . whether the applicant is inadmissible.”); see also8 U.S.C. § 1182 (a)(2)(A) (2018) (outlining that someone who admits to an illegal act is inadmissible to the United States).

[8] See 21 C.F.R. § 1308.11(d)(31) (2018). But see 21 C.F.R. § 1308.15(stating that the only approved cannabidiol drug is approved by the U.S. Food and Drug Administration and contains cannabidiol derived from cannabis with no more than 0.1 percent residual tetrahydrocannabinols).

[9] See 8 U.S.C. § 1182(a).

[10] I-192, Application for Advance Permission to Enter as a Nonimmigrant Citizen, U.S. Citizenship and Immigration Services, https://www.uscis.gov/i-192 (last visited Nov. 4, 2018).

[11] Dep’t of Homeland Sec., Instructions for Application for Advance Permission to Enter as a Nonimmigrant (Dec. 23, 2016), https://www.uscis.gov/sites/default/files/files/form/i-192instr.pdf.

[12] Fiallo v. Bell, 430 U.S. 787, 792 (1977) (reaffirming Congress’s power to decide whether to admit certain non-citizens into the United States).

[13] Int’l Trade Admin., Canada – Travel and Tourism, Export.gov (Aug. 14, 2017),  https://www.export.gov/article?id=Canada-Travel-and-Tourism.

[14]  SeeKiernan Delamont, Canada Smokes Even More Weed Than the Government Thought, Vice News (Apr. 18, 2018),  https://news.vice.com/en_ca/article/vbxj98/statistics-canada-says-we-are-smoking-more-weed-than-previously-thought.

[15] See Jacquie Miller, Demand for Pot Will be Much Higher Than Anyone Anticipated after Legalization, Says Report Commissioned for Health Canada, Ottawa Citizen (Sept. 5, 2018), https://ottawacitizen.com/news/local-news/demand-for-pot-will-be-much-higher-than-anyone-anticipated-after-legalization-says-report-commissioned-for-health-canada (indicating that, by 2020, the supply of cannabis in Canada will not match demand).

[16] See Amelia McDonell-Parry, Canadian Pot Dispensaries Are Almost Out of Weed, Rolling Stone (Oct. 22, 2018), https://www.rollingstone.com/culture/culture-news/canada-pot-almost-ran-out-weed-marijuana-745636/.

[17] See Craig Giammona & Jen Skerritt, Coca-Cola is Eyeing the Cannabis market, Bloomberg (Sept. 17, 2018),  https://www.bloomberg.com/news/articles/2018-09-17/coca-cola-eyes-cannabis-market-in-push-beyond-sluggish-sodas; Lauren Hirsch, PepsiCo Has Just Become the Latest Beverage Company to Say It’s Looking at the Fast-Growing Cannabis Market, CBNC (Oct. 2, 2018),https://www.cnbc.com/2018/10/02/pepsico-will-look-at-cannabis-industry-critically-says-cfo-hugh-johnston.html.

[18] Kerry Cavanaugh, Your Tax Dollars at Work: The U.S. Vows to Keep Stopping Canadian Pot-Smokers from Crossing the Border, L.A. Times (Oct. 15, 2018), https://www.latimes.com/opinion/la-ol-enter-the-fray-canada-is-legalizing-marijuana-the-u-s-1539638476-htmlstory.html.

[19] Id.

[20] Kevin Murphy, Federal Drug Policies Go Too Far at the Canadian Border, Forbes (Jul. 25, 2018), https://www.forbes.com/sites/kevinmurphy/2018/07/25/federal-drug-policies-go-too-far-at-the-canadian-border/#b94662551958.

[21] Matt Simon, Weed Wins on Election Day. So What Comes Next?, Wired (Nov. 7, 2018), https://www.google.com/search?client=safari&rls=en&q=https://www.wired.com/story/weed-wins-on-election-day-so-what-comes-next/&ie=UTF-8&oe=UTF-8.

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