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How To Avoid Getting Banned From the US Over Weed

Canadians are still facing lifetime bans over admitted use or traveling with non-psychoactive CBD oil.

by Manisha Krishnan
Sep 11 2019, 11:00am

Photos by Donna Burton / CBP (left) and CBD Infos / Unsplash (right)

A few months ago, as I was approaching U.S. customs in Toronto Pearson airport, a customs officer recognized me as a VICE reporter.

“You do videos on marijuana and stuff right?” he continued, as he told a few of his colleagues that they could find said videos on YouTube. (It was a slow night.)

I smiled. But inside, I was freaking out a little, wondering if my association with weed—and the fact that I’ve consumed it—would cause problems. He was chill, and I got through no problem. But it turns out I had plenty of reason to be concerned.

Even though cannabis is legal in Canada and in several US states, it is still a Schedule 1 drug under federal American law, defined as a substance “with no currently accepted medical use and a high potential for abuse.” If you’re convicted of a cannabis offence and you live outside the U.S., you likely won't be allowed to enter the country. If you already live there but you're not a citizen, you could be deported. But even admitting to past weed consumption can get a person barred for life. The same goes if you’re applying for a work visa or a green card, or if you’re a green card holder trying to obtain citizenship.

Recently, two Canadians were caught at the border with CBD oil, which they didn’t realize would be an issue due to its non-psychoactive nature. One is now facing a lifetime ban and will have to apply for a waiver to override it, an onerous process that comes with a $600 fee and can take up to 18 months to complete. The issue gets even more complicated when you consider the fact that even working in the cannabis sector or investing in a legal weed company could get you banned—or possibly deported if you’re already living in the U.S.

Despite the global push towards relaxing cannabis laws, or moving towards some form of legalization, immigration lawyers told VICE at the border things are worse than ever.

Inadmissibility

In April, U.S. Citizenship and Immigration Services put out an update specifying that admitting to legal cannabis use or working legally in cannabis are both considered bars to establishing “good moral character,” which is required to become a US citizen.

“They’re super unforgiving,” said New York-based immigration lawyer Kevin Jones.

Jones told me a “horror story” involving an Australian client of his, who frequently travels back and forth to the U.S. On his most recent trip, about a month ago, the man was pulled into secondary screening at Los Angeles International Airport, where customs officers grilled him for six hours. According to Jones, one of the officers asked his client if he had ever smoked weed, noting that everyone in LA smokes a little weed.

When his client admitted he’d consumed weed in university, he was issued a lifetime ban.

“I’ve had three people including him caught that way in the last month,” Jones said. “They trap the person into admitting smoking and then they bar them.”

Why are authorities asking these questions?

Jones said many of these scenarios play out the same way for tourists. A traveller catches the eye of a Customs and Border Protection (CBP) officer or they may be coming in and out of the country too often.

“Maybe they get a little bit too feisty with CBP in CBP’s eyes, or maybe they don’t like the person. That’s when they start to dig,” Jones said.

Jones said once someone gets pulled into secondary screening, it’s unlikely that they’ll be admitted in the U.S. He describes the ensuring interrogation as “an answer looking for a question.”

“They’ve already determined they’re going to bar this person and they need a legal route to do it so they start fishing,” he said, noting that a person doesn’t have a right to a lawyer or any constitutional rights at the airport.

Kathy Brady, senior staff attorney at the San Francisco office of the Immigrant Legal Resource Centre, described what she considers “cynical abuse” by immigration authorities in Washington State, where weed is legal.

Brady said U.S. Citizenship and Immigration Services have been affirmatively asking naturalization applicants as well as those seeking green cards if they’ve ever tried weed, and denying them admission if they admitted to it.

“These are people who in good faith are obeying all the laws, and [authorities] know they’ll confess it because these people do not know the secret, that secretly under federal law it’s illegal,” Brady said.

She noted that if an undocumented worker seeking a green card is rejected and has admitted to smoking weed, even in a legal state, they risk being deported.

Lying is bad, so is social media

Jones said while admitting to consuming cannabis will get a person banned for life, lying about it is worse.

With his recently-banned Australian client, he said border officers had seized his phone and had found a photo of him posing beside a cannabis plant. After he admitted that he’d smoked weed in university, they told him “you’re lucky you admitted to this because we knew because of this picture.” If he had lied, they would have banned him for misrepresentation or fraud, Jones said, which are much more difficult to have waived.

Brady said the Immigrant Legal Resource Centre advises its clients to never put anything weed related on social media or a phone, including clothing or other forms of weed-related swag. And she said to clean your phone and expect it will be gone through at the border, even if you’re a U.S. citizen.

Bailing is an option

If you get pulled into secondary screening while trying to get into the U.S., or officers ask to see your phone, you can make a withdrawal of admission. That means you say you’re no longer interested in entering the U.S. and want to be sent back home.

If you’re applying for citizenship and it’s still early enough in the process—say you haven’t done your interview yet but you get arrested for smoking a joint—you can also potentially withdraw your application, so as to avoid being rejected.

Avoid applying for anything

It seems harsh, but Brady said if you fall into any of the aforementioned categories, it’s best to avoid immigration authorities altogether.

“You don’t apply for anything,” she said, and if you’re a green card holder “you don’t travel outside the U.S.”

A green card holder who is inadmissible due to something cannabis-related (aside from a criminal conviction) can’t have their green card taken away if they don’t leave the country. Brady said a green card holder who is rejected for citizenship can wait five years and apply again.

However, someone who is applying for a green card and admits to using cannabis more than once will be permanently banned from ever receiving a green card, and is therefore at risk of being deported. (The green card application process can also consist of drug tests and a medical exam.)

Both Jones and Brady said the issue could also impact people seeking work visas in the U.S., although you can apply for a waiver.

“It’s like a nature show,” Jones said. “There’s a bunch of seals frolicking in Australia or South Africa and here comes the shark. We don’t know which seal is going to get eaten by the shark. Most of the seals will not get eaten by the shark. But if you’re the seal who gets eaten by the shark, you’re done.”

Silver lining

There’s been more talk in the U.S. lately about decriminalizing cannabis at the federal level.

Senator Kamala Harris’s MORE Act, for example, proposes taking weed off the schedule of controlled substances and doing reparations for the war on drugs.

Brady said decriminalizing cannabis would go a long ways towards solving the immigration issue, though she said she doubts the MORE Act will pass.

Jones said a lot of the focus on cannabis is coming from former U.S. Attorney General Jeff Sessions, who once claimed weed was only “slightly less awful” than heroin.

While he doesn’t think the U.S. will legalize weed at the federal level, he does believe things will calm down in the future, and there will be more acceptance.

“It’s happened with immigration so many times with so many different issues,” Jones said. “It’ll be very intense for a short period of time and then there will be some kind of resolution of it because it’s just not realistic.”

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