Nov 18, 2019
Warning comes amid rise in expulsions under federal law – even in states where drug is legal
Don’t be fooled by the use of “Britons” in the headline. This article first appeared in the Guardian, a UK newspaper, hence the focus on Britons, but the warning applies to all visitors to the US. As cannabis legislation has relaxed here in South Africa, we are even more likely to feel “safe” when visiting a US state that has also legalised marijuana. Remember the US is a highly devolved jurisdiction, with many laws set by the states and, as a result, legislation varies considerably from state to state. But there is an anomaly that exists with cannabis law: at federal level it is still illegal, and immigration falls under federal law. Read on for more important information if you are planning to visit the US.
A legal expert at an international immigration firm has warned British tourists and employees that if they smoke marijuana in the US, even in states where it has been legalised, they risk being barred from the country for life.
UK visitors can still be arrested and deported from the US even if they consume cannabis in states such as California and Colorado, where the drug is legal, said Charlotte Slocombe, a senior partner at Fragomen in London.
Slocombe says her firm and others that deal with US immigration laws have seen a rise in cases where British holidaymakers and green card holders, working legally in the US, are being expelled or denied entry because of cannabis consumption in states where it is legal.
She said in a scenario where Americans were caught by police smoking cannabis at a party, in a state where it was legal, they could not be arrested. British people and other foreign tourists at the same party, however, could be arrested, deported and branded unfit to re-enter the US.
The warning comes as a growing number of US states are expected to legalise cannabis, among them New York and New Jersey, which will follow 11 states, including Washington DC, that have made the drug legal. Despite that change, under US federal law the drug remains illegal – meaning that foreign visitors can be sanctioned.
“Canada legalised cannabis in 2018 but as the US customs and Border Protection keep saying, US federal law has not changed,” said Slocombe. “What is confusing to people is that while states in the USA have legalised cannabis it remains illegal federally.
“Even if you are a foreigner in a state where it’s legal, it’s still illegal for you federally. If, for example, you buy cannabis from a legal dispensary and that dispensary asks for your passport details as ID that information might be discoverable. It could then trigger, as can admission of drug taking, immigration issues because immigration is covered by federal law not state law.
“This is how people get caught out even though they think they are doing something which is now legal in that state. Equally that would include green card holders and those who hold visas to live and work in the US. Even for an American it is federally illegal, but because they are not subject to US federal immigration laws they would not be as vulnerable.”
Slocombe said federal law trumped state law, and as a foreigner this could trigger inadmissability under US immigration legislation.
“Don’t take any risks, while you are not breaking state law you are still breaching federal law. It’s too dangerous because the consequences are enormous and you might be ineligible for ESTA entry and a visa forever,” she said.
Slocombe warned it was not just cannabis consumers who ran the risk of being deported and potentially permanently barred from the US. Investors, shareholders or firms that supply equipment for legal cannabis producers in also run the same risk.
“There is one example I am aware of where two known investors in the US cannabis industry, who are foreigners and on visas, had their investment deemed illegal in federal law. Another example is a farmer who was on a visa and sold a portion of his land to a cannabis producer and filed US tax returns. That came up as an issue when he tried to apply to renew his visa.”
She said Fragomen had even advised non-US technology companies to be careful over supplying IT services to American cannabis companies.
“Customs and Border Protection state that they have the right to question you about your travel to the US and the industry you are in. So if you are going to do something related to the cannabis industry then yes you could find yourself inadmissible to enter the US.”
Reprinted with thanks to the Guardian
If you need help…
Although possession of cannabis for personal use is no longer illegal, the police are still getting to grips with the implications of the change in legislation. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7 and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146.