BUFFALO — With marijuana becoming legal in Canada this summer, there’s been a lot of speculation surrounding how it will impact travel to the U.S.
Experts are predicting that Customs and Border Protection (CBP) will ask travellers if they have ever smoked marijuana in the past. Rosanna Berardi, Managing Partner at Berardi Immigration Law in Buffalo, New York says, “Travellers must be very careful when answering this question. We have seen CBP deny travellers entry to the U.S. if they answer ‘yes’ even if the incident was 25 years ago.”
How is this possible? The current U.S. immigration law states that a person may be inadmissible to the U.S. if he or she has been convicted of a crime OR admits to having committed acts, which constitute the essential elements of a crime. CBP has taken the last portion of this law and has denied entry to the U.S. for individuals who admit to smoking marijuana. Based on this logic, even Prime Minister Justin Trudeau would be denied admission to the U.S.
So how should a traveller answer this loaded question? Berardi advises, “Travellers must always tell the truth. However, it’s important for travellers to know their rights at the border.”
In order to be rendered inadmissible from the U.S. for a mere admission of a criminal offense, CBP must:
1) Place a traveller under oath, advise that it’s illegal to smoke marijuana in the U.S. and provide the traveller with a definition and essential elements of the federal/state law prohibiting marijuana use.
2) The traveller must freely admit that he/she has committed each element of the offense.
Unless CBP follows these steps, travellers cannot be refused admission to the U.S. for merely admitting to the use of marijuana.
Berardi adds, “There will be great uncertainty at the border once marijuana is legalized in Canada. Travellers need to be prepared and think about how they will answer CBP’s inspection questions.” It is critical to have a plan in place.