In 2018, marijuana was legalized for recreational use nationwide in Canada. New York state is also in the process of legalizing marijuana for recreational use; however, it remains illegal under federal law. As noted previously in our advisory on marijuana-related immigration consequences, the legal consequences of either personal use of marijuana or involvement in the cannabis industry can be severe. This article explores the potential immigration consequences associated with personal use of marijuana in greater depth. Those grounds can be based either on legal or medical findings related to cannabis use.
Criminal Grounds of Inadmissibility
The first and most obvious relevant ground of inadmissibility is INA §212(a)(2)(A)(i)(II), which makes inadmissible:
“…any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))…”
This ground of inadmissibility requires a conviction or admission to having committed a crime related to a controlled substance. If a foreign national may be convicted under U.S. federal law for marijuana use in the United States even if the use was legal under state law; such a conviction would render him clearly inadmissible under this statutory ground. However, it is not clear whether a foreign national who was previously convicted of marijuana use in Canada would remain inadmissible following legalization of marijuana in Canada, as the conduct giving rise to the conviction would no longer be illegal in Canada. It is also not clear what is required to find a foreign national inadmissible for admission of having committed a crime related to a controlled substance, or acts constituting the essential elements of a crime involving a controlled substance. Based on a plain reading of the statute, such an “admission” need not occur in the context of any legal proceeding. It would be possible for a U.S. Customs and Border Protection officer simply to ask a foreign national at the port of entry, “Have you ever used marijuana?” If the applicant were to respond in the affirmative, then there would be sufficient grounds to find the person inadmissible for having admitted to committing the essential elements of a controlled substance violation. There are anecdotal reports that CBP asking questions about using marijuana has led to findings of inadmissibility.
While CBP officers do not routinely ask every applicant for admission if they have used marijuana, there are several factors that could set off a line of inquiry. Examples include having a marijuana-related bumper sticker; smelling like marijuana (to humans or to drug-sniffing dogs); or any photographs or comments on social media indicating drug use. In addition, CBP officers can conduct warrantless, suspicionless searches of electronic devices. If any of a traveler’s phone contents, including texts, emails, chatting apps, etc., contain drug references, this could also lead to questioning on the topic. However the inquiry arises, any admission to marijuana use can lead to a finding of inadmissibility. Once such a finding has been made, it can be very difficult to overcome, as there is no way to appeal a finding of inadmissibility. A non-immigrant waiver remains a possibility; and there are also limited immigrant waivers available to some individuals. However, the inadmissibility finding itself, unless it is a Class A medical finding of inadmissibility which can be overcome through “remission,” will never disappear.
It is not entirely clear whether admission to having smoked marijuana in Canada is tantamount to admission of having committed a controlled substance violation, however, as marijuana use is now legal in Canada; CBP officers would need to probe further to determine whether the marijuana was obtained legally, as provincial laws in Canada maintain strict requirements in how legal cannabis can be obtained. In addition, since such activity would be illegal if conducted in the United States, an officer may read the statute to indicate that the person admitted to the essential elements of a controlled substance violation under U.S. law. This is an open legal question.
Medical Grounds of Inadmissibility
In addition to a conviction-related ground of inadmissibility, CBP officers may refer a foreign national who admits to use of marijuana to a Panel Physician in Canada for a medical examination (which can include a drug test), to determine if the applicant for admission is inadmissible on any medical related grounds. INA §212(a)(1)(A)(iii) makes inadmissible any foreign national who is found to have currently, or previously to have had, a physical or mental disorder and associated harmful behavior that may pose, or has posed a threat to the property, safety or welfare of the alien or others. In addition, INA §212(a)(1)(A)(iv) makes drug abusers or addicts inadmissible to the U.S. CBP officers are not authorized to make such findings of inadmissibility on their own; they must be made by a panel physician.
Panel physicians are bound by the U.S. Centers for Disease Control’s Technical Instructions in carrying out immigration medical exams. According to the Technical Instructions, a finding of inadmissibility under INA §212(a)(1)(A)(iii) is appropriate where the panel physician finds that the applicant has a substance use disorder, which is defined as, “a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems” plus associated harmful behavior. Significantly, this type of finding need not involve a controlled substance but could involve legal substances. Frequently, for example, this ground of inadmissibility is used against individuals who are alcohol abusers or addicts and who have driving-related alcohol offenses. Presumably, a similar finding of inadmissibility would apply to someone who has imbibed in legal marijuana use and subsequently engaged in associated harmful behavior, including but not limited to driving under the influence.
A finding of inadmissibility under §212(a)(1)(A)(iv), according to the Technical Instructions, only applies to controlled substances; thus alcoholism, for example, cannot lead to a finding of inadmissibility under this ground as alcohol is a legal substance. By contrast, marijuana is a controlled substance and therefore marijuana abuse or addiction can trigger a finding of inadmissibility under this statutory provision, even absent associated harmful behavior. The question then becomes what type of marijuana use constitutes “abuse” or “addiction.” Experts continue to debate whether marijuana is addictive, but “abuse” is a lower threshold that potentially encompasses even those who have used marijuana a few times. Thus, if a CBP officer or a panel physician asks an applicant for admission whether he or she has ever used marijuana and the applicant answers in the affirmative, this ground of inadmissibility may be triggered.
According to the Panel Physician Technical Instructions, laboratory testing is not routinely used to determine drug use for non-immigrants; however, it may be used if drug use is suspected. A positive result on a drug test would trigger an inadmissibility finding. In addition, while admission to a single use of marijuana may be determined not to constitute “drug abuse,” in all likelihood, admission to use of marijuana on more than one occasion will trigger a finding that the person is a drug abuser. The Technical Instructions provide that even if an alien is found to have a Class A medical disorder and is inadmissible under INA §212(a)(1)(A)(iv) as a drug abuser, he may later be found admissible to the US if he is in “remission” for a period of 12 months. During this 12-month remission period, the individual may be subject to random drug screenings to confirm remission, and would not be admissible to the U.S. until that remission period is completed.
In summary, despite legalization of recreational marijuana use under Canadian law and under the laws of several U.S. states—likely to soon include New York state—personal use of marijuana remains a potential ground of inadmissibility to the United States both under criminal and medical grounds. The manner in which these rules can be interpreted varies widely and there does not appear to be a consensus at the national level as to how U.S. Customs and Border Protection officers should apply these rules in a case-by-case basis. Foreign nationals traveling to the United States should therefore be aware of these potential pitfalls—particularly those traveling to the U.S. from Canada, where marijuana use is legal.