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Canadians can lose Nexus passes over legal cannabis use in Canada: U.S. document

Nexus question about weed has high stakes
WATCH ABOVE: Admitting to legal cannabis use in Canada can get your Nexus pass taken away by the U.S., a lawyer warns.

Cannabis use may be legal in Canada, but if U.S. border guards find out about it, a person could have their Nexus pass taken away or not granted in the first place, secret instructions issued to managers at U.S. border posts say.

“If an alien admits to the use of marijuana (post legalization) he or she is technically admissible to the U.S., but would not be eligible for a Trusted Traveller Program,” the instructions say.

The instructions were intended only for supervisors at U.S. border posts and weren’t supposed to be circulated below their rank level. Lower-level border officers got much simpler material.

A software developer on the West Coast, who did not want to be identified for professional reasons, found out about the rule the hard way.

A dual U.S.-Canadian citizen, he went to renew his Nexus card at the Vancouver airport, a process that needs interviews with both Canadian and U.S. officials. The Canadian interview went smoothly, but the trouble began with the U.S. one.

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“He just started asking rapid-fire questions: ‘Have you ever had a DUI?’ He was just looking for something,” he said.

“Finally he asked, ‘Have you ever smoked marijuana?’ He kind of curved his shoulders and looked at me.

“I told him I tried it when it became legal in Canada, but I don’t have any desire for it. I don’t like marijuana.”

Later he got an e-mail saying his renewal had been denied on the basis that he is “not a low-risk person.”

“The worst I’ve ever gotten is a speeding ticket,” he says. “I can’t believe this is actually happening to me. Even though it’s federally prohibited in the U.S., it’s legal in Canada. How can you hold that against me? It doesn’t make any sense.”

Prospective Canadian cannabis investor gets lifetime U.S. entry ban
Prospective Canadian cannabis investor gets lifetime U.S. entry ban

The Customs and Border Protection policy creates a dangerous trap for people who don’t see a problem with admitting to legal cannabis use and are then surprised to find their pass taken away for life, says immigration lawyer Len Saunders.

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“I get lots of phone calls from people who run into issues with the Nexus program,” he says. “As a U.S. attorney right at the border, they’ll call me and say, ‘I had this really weird situation that happened, I was conditionally approved, I went into the Nexus office, and I was basically interrogated by an American officer on my legal use of cannabis in Canada, and I walked away basically being told I wasn’t eligible.’

“The people are dumbfounded. When I tell them there’s really not a lot I can do, they’re shocked.”

It’s been clear that a policy along these lines has been enforced, lawyers familiar with the issue say, but a written copy hasn’t been public until recently, when it surfaced during a lawsuit.

The language used internally is clearer and harsher than in CBP’s media talking points about the issue, which use words like “could” and “may.” It’s also much clearer that it’s referring to legal use, not illegal use before October of 2018; the public talking points could be read either way. It also appears to include medical use as a ground for refusal.

Think twice about asking for a pardon, border lawyer says
Think twice about asking for a pardon, border lawyer says

Nexus cards allow pre-screened travellers to cross the border easily, often skipping long lines.

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The U.S. rule also applies to the less well-known FAST program, which is designed to let commercial truck drivers cross the border easily.

“Usually it’s someone who’s younger, in their teens or early 20s,” Saunders says. “The officers will frequently ask if you’ve ever used cannabis in the past. A lot of times people admit to it, whether they’ve done it before legalization in Canada or after.

“They don’t realize that if they’re asked that question and they admit to it, it’s basically the kiss of death to getting a Nexus card. It’s an immediate denial and a lifetime ban from the program.”

The CBP instructions list 30 different cannabis-related scenarios that could come up at the U.S.-Canadian border, with correct solutions. All of the solutions are censored.

The lawsuit stems from a U.S. freedom-of-information request originally filed with CBP by Davis Wright Tremaine, a large Seattle-based law firm with a cannabis law practice.

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The FOIA request was aimed at finding out the legal basis for CBP’s decision to treat Canadians with ties to the legal U.S. cannabis industry as “drug traffickers” liable to be banned from entering the U.S. for life.

Cases of this happening to unwary Canadians regularly come to light.

In 2018, senior executives in a Canadian farm equipment company were banned for life when they tried to cross the border to do a sales demonstration of a cannabis bud trimming machine. In a separate case, a B.C. man who admitted that he’d invested in a legal grow facility in Nevada was also banned for life.

(In the U.S., cannabis is federally illegal but legal in several states; the tensions and contradictions that result create traps for unwary non-Americans.)

In 2018, CBP said it would also bar Canadians working in the fully legal Canadian cannabis industry, but reversed this position a few days before legalization.

READ MORE: In major shift, the U.S. says it won’t ban Canadian pot workers

Davis Wright Tremaine’s lawyers take the position that they haven’t been given all the documents they’re entitled to, which led to the lawsuit. The goal is to find out what CBP thinks the legal basis is for policies like banning Canadians for life for involvement with the U.S. cannabis industry, says lawyer Chris Morley.

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“There does appear to be, from CBP’s actions and statements, an actual policy that they’re implementing. There appears to be an interpretation of the Immigration and Nationality Act that they have turned into a policy. It appears that they developed this policy in April of 2018, and they started implementing it then.”

Morley says it isn’t clear to him how CBP justifies policies like these, based on the laws the agency is supposed to be enforcing.

“Really, the long game is to try to figure out what CBP’s policy is. CBP officials have discussed the policy, but we don’t know what it is.”

Global News asked CBP whether the rule in the manual was still their policy, what the legal authority for it was, and why the language intended for the public was milder than the language used internally. They refused to comment, citing ongoing litigation.

Past marijuana conviction could still prevent U.S. border crossing
Past marijuana conviction could still prevent U.S. border crossing

Significantly, the instructions advise CBP officers not to try to use a law excluding people from the U.S. for being a “drug abuser or addict” on Canadian cannabis users.

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Since U.S. law assumes that any level of use of controlled substances like cannabis is “abuse,” there have been concerns since legalization that it could be used to ban any Canadian cannabis user, no matter how occasional their use was.

“It is recommended that this ground of removal not be used due to being difficult to sustain,” the instructions say. However, the explanation that follows only addresses addiction and not abuse, a much looser category.

(No case of the provision being used this way has become public.)

Canadian lawyer questions government advice to be honest at U.S. border
Canadian lawyer questions government advice to be honest at U.S. border

The application for a Nexus card asks about a criminal record but not about drug use, licit or illicit. Questions about cannabis use, if any, come up at the U.S. interview.

Bellingham, Wash., immigration lawyer Scott Railton represented an elderly American couple who were denied Nexus cards after admitting in an interview that they used CBD to help them sleep, he says. CBD is legal in the U.S. in most contexts.

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“It is both confusing and ridiculous,” he wrote in an e-mail. “The information was volunteered to be candid and truthful in relation to a certain question.”

READ MORE: Pay cash for pot if you can, federal privacy commissioner urges

Trudeau asked to provide pot-users with advice on crossing U.S. border
Trudeau asked to provide pot-users with advice on crossing U.S. border

About 6.1 million Canadians used cannabis at least once in mid-2019, Statistics Canada says. About 1.4 million Canadians, and 400,000 Americans, have Nexus passes, the CBSA told Global News.

If asked the question, Saunders advises refusing to answer it. Not answering doesn’t have long-term consequences, but an admission does.

“I live in fear,” Saunders says. “I work right at the port of entry, in northern Washington State. I cross back and forth frequently. I live in fear that some silly decision by an officer could affect my Nexus privileges.

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“It can be life-changing. If someone has to cross over on a daily basis and they lose their Nexus privileges, or they’re not issued a Nexus card when they move to this area, what happens is that they have to change their job, they have to change where they live. It’s unfortunate if it happens to be an admission to smoking cannabis, when legally they’ve done nothing wrong.”