Last week US Customs and Border Protection (“CBP”) issued a warning to “Canadians wanting to head into the U.S. with their stash.” According to that article, attempting to cross the border with marijuana could lead to “being fined, arrested, or both.” Although both of these consequences are possible, an additional, severe consequence was not mentioned: permanent inadmissibility to the United States.
- has been convicted of,
- admits to committing, or
- admits to committing acts that constitute the essential elements of
a violation of the Controlled Substances Act is inadmissible to the United States (INA § 212(a)(2)(A)(i)(II)). The Controlled Substances Act prohibits possession of any “controlled substance.” A controlled substance is defined as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” Marijuana is listed on schedule I.
When a traveler applies for admission to the United States, he or she may be referred to secondary inspection. During secondary inspection, a CBP officer has the authority to inspect an applicant for admission and require the applicant to answer questions under oath (INA § 235(a)). If a substance resembling marijuana is found during inspection, the inspecting officer’s questions will seek to confirm that the substance is, in fact, marijuana, and that the traveler is aware of this fact. Next, the inspecting officer will review the relevant provisions of the Controlled Substances Act and the Canadian Controlled Substances Act.
The objective of the interview is to have the traveler admit to committing a violation of the Controlled Substances Act. As a result, CBP will issue a formal finding of inadmissibility to the United States. For most Canadians, inadmissibility means that they must apply for a waiver before once again seeking admission to the US. A waiver application costs USD $585 to file, may take at least 6 months to adjudicate, and must be renewed at least every 5 years for as long as the traveler wants to continue traveling to the US. In short, a finding of inadmissibility may be a much more severe penalty than an arrest or a fine.