To Go or Not to Go… to the United States of America

In light of all the media attention that has surfaced recently regarding the admission of Liberal leader, Justin Trudeau to having smoked marijuana combined with stories about individuals who have been refused entry into the United States for smoking marijuana, this topic has been buzzworthy lately.

Caught “Off Guard”

Canadians are often surprised to hear that there is a strong likelihood they can be refused admission to the United States for having smoked marijuana at any point in their adult lifetime, regardless of how much time has elapsed since the incident. Often, I get calls from prospective clients in a panic who have been told by United States Customs and Border Protection (“USCBP”) Officers they are not entering the United States until they get a “waiver.” The question I am asked most frequently is: “Can they [USCBP] do that?” To the caller’s dismay, my answer is always an unequivocal “Yes.”

The Law

Pursuant to the Immigration and Nationality Act (“INA”) § 212(a)(2)(A), generally any individual who is convicted of or admits having committed, a crime involving moral turpitude; or a violation of any law relating to a controlled substance is inadmissible. Crimes involving moral turpitude are most easily described as those crimes which demonstrate dishonesty or evil intent.

It is important to note that the law does not require a conviction to determine inadmissibility to the United States. For specified offenses including any offences relating to controlled substances such as marijuana use, it is enough that an individual admits to committing a crime or if an officer has reason to believe a crime was committed. Legal advice should be sought to determine if an admission was made in accordance with INA § 212(a)(2)(A). For example, for a lawful admission to be made pursuant to the law all of the essential elements of the crime must be presented to the person seeking admission and that person must be given an opportunity to admit or deny each element of the crime.

Application of the Law is Not Consistent or Always Right

It is not uncommon for USCBP Officers to ask an individual at the U.S. border or a U.S. preclearance facility at a Canadian airport whether they have used marijuana in the past. If the individual answers in the affirmative, not wanting to be deceptive about their past, that answer will often lead to the individual being placed in secondary inspection and ultimately being refused entry to the United States that day.

The strict letter of the law is not always followed. In many cases unlawful admissions are taken by USCBP and used against the individual seeking entry into the U.S. The only recourse is that the individual must apply to the USCBP Admissibility Review Office in Virginia to present the case for a non-immigrant waiver or to present a case for an ultimate determination that the admission at the border or airport was unlawful and the individual should not be found inadmissible. For a non-immigrant waiver application to be successful, the applicant must demonstrate that since the incident in question took place, they have not engaged in illicit or unlawful activities, they are generally trustworthy, have no outstanding criminal charges and others attest to the strong moral character of the applicant. Processing times for non-immigrant waivers and determinations of admissibility are presently taking a minimum of four months. In very urgent and extreme circumstances such as extreme illness of a family member, those considered inadmissible to the United States may be temporarily permitted admission to the United States pursuant to “Humanitarian Parole.” This relief is highly discretionary and seldom granted.

Canadian Pardon is Not Enough

The U.S. does not recognize foreign pardons as removing criminal inadmissibility. The United States will only recognize pardons from the Governor of a U.S. state or a pardon from the President of the United States. However, if a Canadian pardon has been obtained it may be helpful in demonstrating rehabilitation in an application for non-immigrant waiver.

A Waiver is Not Perpetual

It is also important to note that U.S. waivers do not permanently remove inadmissibility to the United States. In most cases, U.S. waivers are given initially for validity periods of one year and then subsequently for two to three years at a time. This means that an individual with a relatively minor blemish in their past, will have to re-live the incident every few years just to go through the administrative process and expense of ensuring they have a valid waiver every time they wish to visit the United States.

Although some Canadians are so enraged with the process and vow never to visit the United States again, most feel that they are better off to grin and bear the process for the sake of not having to miss a family reunion south of the border, a bachelor party in Las Vegas or a Seattle Seahawks football game.

You Never Know What Will Happen

Will Mr. Trudeau really be refused admission to the United States? Some think that USCBP may ignore his media “confession” and never ask him the question. Others believe he should not be given special treatment. From a legal perspective, I strongly believe there is no basis for turning him away at this point as he has a clean criminal history and has not admitted the essential elements of a crime involving a controlled substance to USCBP Officers. However, a USCBP Officer aware of current events may rightly or wrongly “have reason to believe” that Mr. Trudeau’s confession is enough. The answer to the question really depends on the Officer who holds the key to Mr. Trudeau’s fate.

The good news is whether an individual has been found inadmissible to the United States for a prior conviction or an admission (lawful or not). There are ways to navigate the process to ultimately have the freedom to visit the United States with relative ease. Basically, do not panic and seek legal advice immediately. It often is not as bad as it seem or feels.

Disneyland anyone?


Tags: Article; Immigration; Individual Immigration & Family Reunification