War on Drugs

Candid Canadian Cannabis Consumers Still Can't Can't Come to This Country

Any alien who admits illegal drug use is "inadmissible" without a waiver.



Citizens of other countries can legally visit the United States if they've been convicted of driving under the influence, breaking and entering, smuggling, assault, or involuntary manslaughter—but not if they have ever smoked pot, dropped acid, or snorted cocaine, even if it happened decades ago and they were never charged with a drug offense. Under Section 212 of the Immigration and Nationality Act, "any alien…who admits having committed 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…is inadmissible." That rule has been on the books since 1987, but it is only fitfully (and arbitrarily) enforced, so it continues to ensnare unwary tourists who do not realize that candidly answering questions about past drug use can end a trip before it begins.

The CBC recently described two such cases. In 2014, it reports, Matthew Harvey "was driving from Vancouver to Seattle for a concert when a customs officer noticed a marijuana magazine in his car," which prompted questions about his marijuana use. Harvey answered honestly, thinking it was no big deal, especially since he used marijuana legally for medical purposes in Canada and was on his way to a state where it was legal for recreational use. But marijuana is still completely prohibited by federal law, which is the relevant point as far as Section 212 goes.

Although Harvey has worked in British Columbia's marijuana industry, his lawyer says that had nothing to do with the decision to bar him from the United States, which was based entirely on his admission that he had smoked pot recreationally as an adult. Now Harvey would like to take his 3-year-old daughter to Disneyland, but first he must obtain a "waiver of ineligibility." The application costs $585, whether or not a waiver is granted, and that fee will rise to $930 later this year. The waiver must be renewed as often as once a year, depending on the term chosen by U.S. Citizenship and Immigration Services.

Another Vancouver resident, Alan Ranta, was on his way to a music festival in Washington last July when U.S. Customs and Border Protection (CBP) officers found a purse humorously labeled "weed money" in his car, which led to questions about Ranta's drug use. "I answered truthfully," he told the CBC. "I said I had smoked [weed]. That led to followup questions on how much I smoked, where had I smoked it, and when I smoked." None of those details actually matters under Section 212. As long as Ranta consumed cannabis when he was 18 or older, even if it was just once, he is "inadmissible."

Other examples of Canadians turned away at the border because of illegal drug use include Myles Wilkinson, a fantasy football player with a 1981 conviction for marijuana possession who in 2013 won a trip to the Super Bowl he was not allowed to take, and Andrew Feldmar, a psychotherapist who was prevented from visiting his children, friends, and colleagues in the U.S. because a CBP officer's web search turned up a journal article in which Feldmar discussed his experiences with LSD and other psychedelics in the 1960s. Unlike Harvey and Ranta, who incriminated themselves, Wilkinson and Feldmar were tripped up by publicly available information.

For travelers who have a choice, Harvey recommends a strategy of "deny, deny, deny." Len Saunders, an American immigration lawyer consulted by the CBC, suggests a less legally perilous approach: "Saunders' advice to Canadians asked about their past marijuana use at the border is to refuse to answer the question. They may be held for several hours, but there is no legal requirement, he says, to answer the question."

[Thanks to Marc Sandhaus for the tip.]