By Pat Grubb
Ed. Note: The following story, parts of which appeared in the September print issue of the All Point Bulletin, has been revised and updated to include more information about recent incidents at the U.S. ports of entry at Point Roberts and Blaine.
Smoked marijuana? Not an American? Better think twice before you unburden your guilty conscience to a U.S. border official. Ted Gilliat likes to go down to Point Roberts with his four- and six-year-old daughters to fly kites at Lighthouse Marine Park. He won’t be doing that anytime soon after undergoing over four hours of examination at the U.S. port of entry on Sunday, August 21 – a harrowing experience that led to his permanent exclusion from the United States.
His offense? He admitted to border personnel that he smokes marijuana. He’s not the only one recently banned from entering the States. According to Blaine immigration attorney Len Saunders, “I am aware of two exclusion incidents involving marijuana use, past and present, that happened in Point Roberts last week.”
Gilliat, 46, grew up in Tsawwassen, B.C. and has crossed the border countless times from his childhood onwards. In November 2005, he rode across the border on his bike and was discovered with 11 grams (less than 0.4 oz.) of marijuana in his backpack. He was not prosecuted or fined and was allowed to return home to Canada.
In 2011, he applied to the Customs and Border Protection’s (CBP) Admissibility Review Office for advance permission to enter the States. That August, he received what is referred to as a September Letter which stated: “Upon examination of the incident you were not arrested nor convicted, nor did you admit to committing acts which constitute the essential elements of a violation of any controlled substance law or regulation … It is the determination of this office that you are eligible for travel to the United States.”
Gilliat said his most recent troubles began when he came down to the Point two days earlier on Friday, August 19 without his September Letter. Questioned extensively about the 2005 incident and after cooling his heels in the office for 90 minutes, he was denied access because he wasn’t carrying the letter. “I’ve only been asked for it twice in the five years I’ve had it and I’ve entered the States plenty of times,” he said.
On August 21, he again attempted to enter the Point to attend a family picnic, this time carrying the letter. To no avail, it appears.
According to Gilliat, this time he spent well over four hours being interrogated at times by three officers about the 2005 incident and his use of marijuana. “If I had to use one word to describe the experience, I’d say entrapment. That is exactly the word that comes to mind. They made me say stuff that I shouldn’t have said. They got me so worked up to get me to answer the way they wanted me to answer. They’re not nice about it. It’s an interrogation, it’s like you’re going to jail so you give answers so you won’t go to jail,” Gilliat said.
“[Going to jail] is the inference they make,” said Saunders. “They make it sound like there’s serious negative consequences when in reality all they can do is to deny entry. It’s a twilight zone. Marijuana is legal in Washington state and elsewhere but they’re still asking the question. What people don’t realize is that they’re setting themselves up for a lifetime ban from entering the U.S.”
Gilliat was interrogated under oath inside a closed room and asked a standard series of questions. Initially, the questions were innocuous and aimed at ensuring that the subject is not American or has a claim to U.S. citizenship or American Indian status. The questions became increasingly significant and intended to determine whether Gilliat had or currently uses drugs and his knowledge of the law.
For example, Gilliat was told that, “According to Title 21 Code of Federal Regulations (C.F.R.) Section 1308.11 Schedule 1, marijuana is considered to be a Schedule 1 controlled substance” and asked if he understood.
Gilliat’s interrogation ended with a declaration by the officer that he was an alien “who has been convicted of, or admits having committed” violating controlled substance laws and is thus inadmissible for entry to the U.S. unless they obtain a nonimmigrant waiver of inadmissibility from the Department of Homeland Security.
Saunders said he always recommends to people that they should be truthful about having been arrested or convicted of a crime. “However, you’re under no obligation to answer [questions about drug use] – it’s none of their business,” he said. “Ted’s crossed the border thousands of times. For an officer to spend four-and-a-half hours on a busy Sunday to interrogate a middle-aged Canadian who recreationally smokes a little marijuana is a colossal waste of government resources. Who spends half their shift interrogating someone when there’s a long line of cars waiting to cross the border?”
Current and former CBP officers say this type of questioning is at individual officers’ discretion and, according to Saunders, is often driven by a desire for promotion. “I’ve been told that there’s guidance coming from senior officers to pursue these cases,” said Saunders.
Gilliat has begun the process of applying for a waiver of inadmissibility which he described as “a huge inconvenience.” Not only that, says Saunders, it’s also expensive and will be getting even more expensive. “Currently, it costs $585 just to file for an I-192, not considering attorney fees, and will be going up to $930 later this year.” Initially, an I-192 is valid for a year but eventually is good for a multi-year period. Saunders has been notifying clients who need to renew their waivers to do so before the cost goes up.
In an interview with Canadian broadcaster CTV on August 27 (bit.ly/2bMXgRc), Saunders said the question of drug use is irrelevant to entering the U.S. unless the traveler has a criminal conviction or is in possession of drugs at the time of entry. Gilliat told the interviewer, “I should have lied.”
You’re not going to Hawaii
The other incident involved a 44-year-old Langley woman who owns a cabin in Point Roberts. Growing up in Tsawwassen, the woman, who asked to remain nameless, frequently visited Point Roberts from childhood onwards. On August 13, she was sent inside for secondary inspection. She was taken into an interrogation room and questioned intensively by a CBP officer who said he was normally stationed at Blaine. The door and the windows’ blinds were closed. After approximately 90 minutes, the supervisor instructed the officer to keep the windows and door open. Current CBP policy does not require an officer of the same sex be present during interrogations; only when a subject is physically searched for contraband is an officer of the same sex required.
During her interrogation, the woman mentioned that she and her husband were scheduled to fly to Kona, Hawaii the first week of September to celebrate their 20th wedding anniversary.
“I had some prescription medicine in my purse and he started asking me about controlled substances,” she said. He then told her CBP had reason to believe and proof that she had used marijuana and said if she refused to answer, or lied, then she would be arrested.
“I couldn’t understand why he would say that but he kept asking me if I knew that marijuana was legal in Washington state, implying that it wasn’t any big deal. I finally told him that I had tried it two or three times in high school but never really felt anything from it,” she said.
The officer then informed her that she had committed a federal offence, she was no longer welcome in the U.S., she’d be unable to go to Hawaii with her husband to celebrate their 20th wedding anniversary and it was a lifetime ban.
“I was shaking and was really upset,” she said, and asked to phone an American neighbor to come up to the border. After he arrived, the two were sitting in the lobby along with other travelers when the officer began to insist that she be fingerprinted. She refused, at which point the officer repeatedly called her a criminal.
“The treatment was unbelievable, it was like a Third World country. It was very embarrassing being treated that way in front of the other people in the lobby. I also had to ask three times before being allowed to use the washroom,” she said. Eventually, the supervisor pointed out that the woman’s fingerprints were already on file as she was a member of the NEXUS program.
Finally, after being detained for more than four hours and having asked to be allowed to leave, she was allowed to return to Canada. Unlike Gilliat, she was not asked to sign a sworn statement admitting to prior drug use.
“It was absolutely not OK, the way I was treated. Hopefully, something will change but I feel really bitter. Right now I want to sell our cottage and never go back,” she said. Asked what her current plans are to celebrate her anniversary, she replied, “We’re going to Vancouver.”
“I’ve never heard of anyone being treated so poorly,” said Saunders. “What is going on up there in Point Roberts? I think it was horrible how they dealt with this woman who tried pot a couple of times nearly 30 years ago. It’s like the Gestapo, it’s disgusting, it’s shocking. They don’t have to be the welcoming committee, they only have to be decent.”
The American friend who came to the port and subsequently complained about her treatment was stripped of his NEXUS membership by a supervisor, who told him that he “didn’t fit the personality profile of a NEXUS member.” The American citizen has contacted U.S. Congresswoman Suzan DelBene’s office as well as Washington governor Jay Inslee’s office to complain about the port’s actions. Matt Isenhower, DelBene’s district director in Bothell, wrote back on August 29 to say he planned on meeting with CBP to ask them about the incidents.
The day the music stopped
Closer to Blaine, a Vancouver music writer crossing into the mainland was banned for the same reason a few weeks ago.
As reported by Sarah Berman on Vice.com, Alan Ranta was coming south to attend a music festival in Washington when he encountered difficulties at the border. Ranta was quoted as saying that they had no marijuana but did have a small purse that had a “weed money” label.
After an exhaustive search of the car, Ranta was handcuffed and taken into a small interrogation room and questioned about marijuana use.
Thinking it was no big deal with forthcoming legalization in Canada and the fact that it is legal in Washington state, Ranta admitted to using marijuana recreationally. Big mistake – Ranta was denied entry for violating the Controlled Substance Act and will now have to apply for a waiver. In the meantime, he will not be allowed to visit the family cabin in Point Roberts, a cottage his family has owned for 50 years.
A 2013 Pew Research Center study undertaken just after Washington and Colorado voters approved the legalization of marijuana found that 48 percent of all adult Americans had used pot, while a 2014 University of Chicago study disclosed that 55 percent of Americans believed it should be legalized. However, those figures vary greatly by state. For example, a 2011 National Survey on Drug Use and Health showed that 60.2 percent of Washington residents aged 18-60 had used pot at least once.
Regardless of how the public views marijuana, the federal government has barely budged on the issue. A request by governors Jay Inslee of Washington and Gina Raimondo of Rhode Island that the Drug Enforcement Agency (DEA) re-classify marijuana to a non-schedule 1 drug was turned down on August 11 by acting DEA administrator Chuck Rosenberg who ruled that marijuana does not have a currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse, all of which are criteria for being considered non-schedule-1 substances.
Saunders also had sobering words for people who have NEXUS membership but get excluded after admitting to prior drug use. He said it’s more than likely that they’ll be able to get a waiver and be able to enter the U.S. but they will never get their NEXUS status back. “That’s a lifetime ban,” he said.
“What’s interesting about Gilliat’s case is that he actually had a September Letter saying he was admissible but they went beyond that,” Saunders said. Sounding disgusted, he added, “I know Ted. He’s a good person. For the government to put him through all this is a huge waste of time and money.”
In the meantime, Gilliat will have to find another place to fly a kite with his young daughters, Ranta will be unable to write about music events in the U.S. and a Langley woman will be celebrating her 20th wedding anniversary in Vancouver instead of Hawaii.
America’s war against drugs has notched up another three victories.