Suit seeks answers for pot workers
U.S. Customs and Border Protection sued to get to bottom of lifetime bans
VANCOUVER— An American law firm is suing U.S. Customs and Border Protection over its refusal to disclose documents detailing its authority for handing out lifetime bans to Canadian cannabis workers trying to enter the U.S.
While U.S. Customs and Border Protection (CBP) has broad discretion to question travellers to the United States on any number of subjects, the legal mandate by which its officers are empowered to permanently ban Canadians who work in the cannabis industry is unclear, said John McKay, a former U.S. attorney with the Department of Justice.
“I want to know what their authority is to ban people or to threaten to ban people and to cause fear among law-abiding Canadians who want to enter the United States,” McKay, now a partner with the plaintiff in the suit, Davis Wright Tremaine LLP, said.
Citing a July 2018 article in the Star that first reported the practice of border bans for Canadian pot workers, the suit alleges CBP has improperly withheld documents requested by McKay’s law firm under the Freedom of Information Act (FOIA).
The suit, filed last week in a Washington federal district court, claims the CBP ran out the clock on its window to respond to the firm’s FOIA re- quest and failed to give any notice of an application for an extension. McKay said the lawsuit’s aim is to force the release of the requested documents, which would reveal the legal basis behind CBP’s banning of cannabis workers, and to obtain an award for attorney’s fees and costs related to the suit.
In doing so, he added, he hopes to uncover whether the enforcement of such a policy is actually legal under U.S. law. A central federal agency such as Homeland Security could be providing CBP officers with direction to implement border bans, he said. If that is indeed the case, “we may or may not have a basis for legal action because of the way they’re treating folks who want to enter the United States,” he said.
In an email, a CBP spokes- person told the Star that “as a matter of policy, U.S. Customs and Border Protection does not comment on pending litigation. However, lack of comment should not be construed as agreement or stipulation with any of the allegations.”
Davis Wright Tremaine LLP has clients in the legal cannabis industry in both the U.S. and Canada. The lawsuit, however, is being brought by the law firm itself.
Leading up to cannabis legalization last October, Canadians who were even tangentially involved in the cannabis industry increasingly became the targets of lifetime bans — a status known formally as “inadmissibility” — for what they were told were crimes ranging from drug trafficking to aiding and abetting a criminal enterprise.
While dozens of American states have legalized medical or recreational pot use, the drug remains prohibited at the federal level.
Because the border is under federal jurisdiction, admission of past use of cannabis or involvement in the pot industry was sufficient to ban a traveller from entering the U.S.
On Oct. 11, 2018, an update was quietly made to CBP’s public regulations, stating that travellers who had ties to the legal cannabis industry in Canada would no longer be subject to inadmissibility. But the door was left open for bans to be levelled against Canadian businesspeople and investors with links to the legal American cannabis industry, should those ties become apparent to CBP officers.