What Should You Do If the US Border Asks About Your Party Habits?

We asked a lawyer.

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Sep 27 2017, 5:54pm

Asset source: Wikipedia Commons | Art by Noel Ransome 

This week, the parliamentary secretary to Canada's minister of public safety told Canadians that they should "be honest and tell the truth" when asked if they've smoked weed next year at the US border.

But, as we know, if you've partaken in illicit drug use and admit to doing so at the US border, it can earn you a permanent ban from entering the States. That kind of ban requires being circumvented with a waiver if you do wish to return to the US, which requires paperwork, hundreds of dollars, and, at times, a lawyer.

Len Saunders, lawyer with Blaine Immigration in Washington state, often deals with young, embarrassed clients seeking waivers after getting banned at the US border. We asked him what you should do if you're asked about your prior use of cannabis or other currently illicit drugs, as well as an array of harrowing scenarios you might find yourself in when attempting a trip south of the border.

VICE: If a guard asks you point blank if you've smoked weed and you have, what are your options?
Len Saunders: If it's just a straight question when you're entering the US kind of out of the blue, I always tell clients you're under no obligation to answer that question. If it's a random question at the border, whether you've smoked pot or not is not a question in my mind that's relevant to someone's entry into the US. You can politely decline to answer that question.

Will you always get banned for admitting to smoking weed at the border?
It's discretionary at the border. You have to remember not every officer is going to ask that question. And if someone does admit to it, not always, but sometimes the officer will allow the person to enter because in order to technically be inadmissible, this can't be a casual "Yes, I have." They have to place you under oath, they have to inform you that it's illegal in the US… You have to then [after being informed] admit that you've done it and sign a statement.

Quite often it's a lengthy procedure that can take hours from start to finish. Some officers will go that extra mile and have you deemed inadmissible, whereas some officers will let it pass. That's where people are caught off-guard, because maybe they came in a month before or two weeks ago or years ago and admitted to it, but then on subsequent entry get an officer that is more thorough with them.

What if you say no, then they search your phone and find out you were lying?
Let's say they do go through your phone and see a picture of you with a joint hanging out of your mouth. Then what they could do if you've denied smoking marijuana is they could deem you inadmissible for life under another section of US immigration law, if you ever commit fraud or lie at a port of entry… That's also a ground for a permanent bar.

If there's anything on your phone you don't want them to see, don't bring it over the border because they have every right at a port of entry to look through your phone. It happens frequently.

What if a border guard asks to search your phone, and you're worried there might be incriminating evidence on it, what are your options?
Easy, you just don't give them your password and basically refuse to allow them to search your phone. But that's almost an instantaneous denied entry. If you're not cooperative at the border, a US border guard is not going to let you into the US.

If there is something on your phone and you don't want them to see it, and they deny you entry, that's better than being deemed inadmissible for life. You can always try the next day or a few weeks or months later at a different port of entry or even the same port of entry, and you're more than likely going to get a different officer that will not be as overzealous to see if you're inadmissible for marijuana use.

If you don't let them search your phone and are turned away at the border, are you flagged in their system after?
Usually what will happen if you get denied entry… The next time you come to the border you'll be sent inside for automatic secondary [inspection]. The officer that is then inspecting you will read the notes from the prior attempted entry, but it's not like every single officer is out there zealously trying to get Canadians to admit to smoking marijuana.

If you don't let them search your phone, assuming it is password-protected, you could be in danger of getting it taken by the US border, correct?
I saw an individual who had their phone seized. They were refused entry to the US, they refused to divulge their password. The individual called me and asked what to do. I said that I didn't think they'd be able to access it. The individual got a call a few days later saying that they were free to come pick up the phone.

Is there a difference between which port of entry you're at?
I've seen it happen at various ports of entry. Of course, busier ports of entry, like Blaine where I am, you see it more frequently just because there are more travellers. It's hard to say one port does it more often than that port… Quite often I'll see it happen more often on a slow day than a busy day.

What if you've publicly admitted to smoking weed or using other illicit drugs before, like your client snowboarder Ross Rebagliati ?
Another great example is Andrew Feldmar, a professor. He was entering the US to go to a conference… They were worried he was coming to the US to work, so they did a Google search on his name, and he had written a book on the psychedelic effects of LSD in the 60s and how he'd experimented with LSD. Then they asked him if he had used drugs… He admitted to it after they had read his statements online.

They can Google search people's names; they can go through social media. I tell people if you don't want your private activities to be made public, then don't post it. If they find this, it gives them a reason to get to that next set of questions, which then leads to a possible permanent bar from the US.

Can you get in trouble if your social media accounts have images of weed or you smoking weed on them?
If they see it and can link it to you, yes, of course. I tell people to be careful of what they post online and the pictures they have on their phone.

Can you get in trouble if they find trace amounts of weed in your car or your bag?
All it takes is a trace amount to test positively. Realistically, you don't have to admit to it; they can do reason to believe. There is a provision under US law that if an officer has reason to believe that you've been involved with illegal drugs because they found them on you, once again, they could bar you for life. What I do in a situation like that is we apply for a waiver to the US, and in my waiver application for the client, I note that the client didn't admit to a controlled substance violation, was not charged criminally, and that basically there was a finding of a small amount of marijuana—wherever it came from, it was there unknowingly.

Obviously if they find it on you, in your pocket, there's nothing you can say because it's found on your person. If it's found in the glove compartment of your car, that's not a permanent bar. They can try to, but then you can apply for a waiver.

You can argue that it's not you, but if it's something you're holding, whether it's a backpack or a purse, I would argue that it's on your person. If it's in the trunk of your car, in the passenger, in the glove compartment, I would argue no because other people have access to that. But if it's something you were carrying, I think they have a fair argument to say it was found on you.

Will weed legalization in Canada have an effect on if Canadians get asked if they've used cannabis at the border?
I definitely think it's going to change in that they'll be asking it more frequently. Especially with legal cannabis, they're going to know more people are using it… When I saw those statements from Mark Holland, I don't think he fully understood you're not only going to be denied entry, but you could be barred for life. Here we have a situation where the Canadian government is doing what I think is the right thing by legalizing it, luckily it has come from the top-down, from federal to provincial government, not the other way around as in the States.

You're going to have potentially 40 percent of Canadians buying it [as one study claimed]—that's 40 percent of Canadians possibly being deemed inadmissible from the US for life. The only people benefitting from that are people like me who are immigration lawyers trying to help Canadians be deemed admissible after a lifetime bar. It's silly that Canadians are potentially being put in this situation by their government saying that on one hand they're going to legalize it, and then encouraging people to admit to this at the border. It's dangerous I think.

For me, it's going to be a booming business, but it's not the kind of business I want to be doing. I'm a Canadian citizen… I want to be able to help Canadians like me immigrate to the US or invest in the US and get investor visas. Helping Canadians being deemed admissible after being barred for life, in my mind, is a colossal waste of my time and my clients' money—but I see it right now as the growth of my law firm.

This interview has been edited for length and clarity.

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