The anatomy of an exclusion: How it happens

By Pat Grubb

Engraved on the International Peace Arch are the words, “May These Gates Never Be Closed.” For a few unlucky souls, these gates are effectively closed, possibly for the rest of their lives.

Recently, a number of Canadians have found themselves “excluded” by U.S. Customs and Border Protection (CBP) from traveling to the U.S. after they admitted to past drug use, usually marijuana. Anticipating marijuana legalization in Canada and knowing that the drug is legal in Washington state, these Canadians have been made suddenly aware that marijuana is still considered illegal by the federal government and have been sent packing home.

This is how it happens…

Under the U.S. Immigration and Nationality Act of 1952, travelers are ineligible to enter the U.S. if they have been found guilty of, or admit to, violating any laws of the United States or a foreign country relating to a controlled substance. Once an individual has admitted using marijuana or another controlled substance, it is tantamount to having been found guilty in a court of law.

The usual suspects

Driving up to the border, Canadians looking forward to shopping south of the border or going to see a Seahawks game or whatever else draws people south of the line suddenly find themselves looking at an orange piece of paper on their windshield and being told to report inside. What happened? More than likely, they’re young and look like someone who may be using marijuana recreationally, said Blaine immigration attorney Len Saunders.

“Most of my clients who are seeking exclusion waivers are not older, professional people. They are young adults, maybe college students with long hair, who fit the profile,” Saunders said. Apart from age and looks, bumper stickers and apparel can also send out warning flags. A freelance music writer and reviewer recently headed to a music festival was sent inside after the CBP guard noticed a wallet emblazoned with a “Weed Money” tag on it. After admitting to using marijuana recreationally, he found himself permanently excluded from the U.S. Some forms of humor don’t travel well.

Who are your friends?

It may be the company people keep that gets them sent inside for secondary inspection. A family member or friend’s border history can be troublesome if the CBP have established a connection between them and the traveler. For example, a friend might have been pulled in for questioning, and during the course of interrogation the CBP find text messages or photos indicative of drug use. Once the friend has admitted to using drugs, the conversation turns to other possible offenders. “I see that you crossed the border a few months ago in the same car as Joe Blow. Is Joe a friend? Have you smoked marijuana with Joe?” Anxious to appear co-operative, the friend says yes.

Now it’s Joe’s turn. He arrives at the border and the computer screen lights up – Joe is sent in. If he has entered the Blaine sector, the questioning begins with a series of questions that have been carefully vetted by the U.S. Department of Justice in Seattle. Initially, the questions are intended to determine whether Joe has a claim to U.S. citizenship or residency based upon his background.

It is probable at this point that Joe will be told CBP has reason to believe or has proof that he has used or uses controlled substances. He’ll be cautioned that it is a felony to lie to a federal officer and that if he lies, he will at the very least be banned from entering the U.S. forever. As an attorney, Saunders cautions clients not to lie to officers and to admit if they have been arrested or have a criminal conviction. However, he says an individual is under no obligation to volunteer whether he or she has used illegal drugs.

“A person can tell them that they’d rather not answer that question. The worst they can do is to send them back to Canada which is better than being permanently excluded for admitting to using marijuana,” he said.

Unlike CBP pre-clearance facilities at Canadian airports, travelers can be held at land borders for a considerable length of time before being sent back to Canada. Some travelers have reported being held and interrogated for up to six hours.

B.C. resident Ted Gilliat was stopped and sent in for secondary examination on August 21 in Point Roberts and described the situation this way: “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.

Another B.C. resident was traveling south to her cabin in Point Roberts in August when she found herself flagged for secondary inspection. “I had some prescription medicine in my purse and [the officer] started asking me about controlled substances,” she said. The officer 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 treatment was unbelievable, it was like a third world country,” she said.

Under the border search exception doctrine, it is permissible for CBP to examine the contents of phones or computers without a warrant. Photos, text messages and contacts are all fair game.

Only in America?

It doesn’t just happen to Canadians. Americans going north can find themselves in a similar bind should they run afoul of Canada Border Services Agency rules. Recently, one couple (who asked not to be named) found themselves in double jeopardy. Both 31 years old, the couple met two years ago at the Subdued Stringband Jamboree in Deming. Last year they got engaged at the festival and this past August got married at the same venue. The man is Canadian and works as a carpenter foreman in B.C. while the woman, an American who lives in La Conner, just graduated with an education degree. After the wedding, the couple honeymooned in Hawaii for three weeks and on their return the new husband went back to work in Canada while the wife began her search for a teaching job.

Although she has entered Canada on many occasions, on September 9 she was refused entry after a computer search turned up the fact that she had convictions for a DUI and reckless driving back in 2009.

Under the Canadian criminal code, anyone who has a foreign conviction that is the equivalent of a serious offence in Canada is inadmissible to Canada. Foreign nationals may apply for a waiver to enter Canada after five years have elapsed.

Making matters worse, the man came down to Birch Bay in early September to meet his wife at property they had recently purchased. It turns out that a friend had recently come through the border and was sent in for secondary inspection; text messages on her phone referred to using drugs. As the friend had previously come south in the same car as the new husband, she was asked if she had done drugs with him to which she replied in the affirmative. On his trip south, the Canadian man was flagged for inspection and underwent six hours of examination. Warned that he would be permanently excluded if he lied, he admitted to prior drug use and was permanently excluded from the States.

The couple are beginning the legal process that would allow them to at least visit their partner’s country. In the meantime, they meet at a picnic table in the middle of Peace Arch State Park.

Asked to comment on the recent spate of exclusions at local borders of travelers who have admitted using marijuana in the past, CBP spokesperson Renne Archer responded in writing to the All Point Bulletin.

“The United States has been and continues to be a welcoming nation. U.S. Customs and Border Protection not only protects U.S. citizens and lawful permanent residents in the country, but also wants to ensure the safety of our international travelers who come to visit, study and conduct legitimate business in our country.

“Our dual mission is to facilitate travel in the United States while we secure our borders, our people and our visitors from those who would do us harm like terrorists and terrorist weapons, criminals, and contraband. CBP officers are charged with enforcing not only immigration and customs laws, but they enforce more than 400 laws for 40 other agencies and have stopped thousands of violators of U.S. law.

“We are the agency charged with determining admissibility of aliens at ports of entry. Under U.S. immigration law [Section 291 of the INA [8 USC 1361] applicants for admission bear the burden of proof to establish that they are clearly eligible to enter the United States. In order to demonstrate that they are admissible, the applicant must overcome all grounds of inadmissibility. Entry requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. federal law, which supersedes state laws. Currently, marijuana possession is against U.S. federal law and U.S. Customs and Border Protection enforces those laws as appropriate.

“Under existing U.S. federal law, an individual convicted of or admits having committed certain crimes or violations of laws relating to a controlled substance can be found inadmissible to enter the United States.”

Asked to provide statistics comparing exclusion rates at local borders with other northern crossings, Archer replied that the newspaper would need to file a Freedom of Information Act (FOIA) request. The CBP response rate to FOIA requests can range from a few months to a few years.