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 on entry to the U.S. to Canadian cannabis workers.

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 in an interview.

Citing a July 2018 article in The Star that first reported the practice of border bans for Canadian cannabis 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 request 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 noted. 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 spokesperson 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.

Last summer, Blaine, Wash.-based immigration lawyer Len Saunders told The Star he was hearing from Canadians seeking legal help for inadmissibility because of cannabis at least once or twice a week. Fifteen years prior, it was one or two cases per year.

While dozens of American states have legalized medical or recreational cannabis 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 cannabis industry was sufficient to hand a traveller a ban 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.

And according to McKay, the legal authority by which such bans are given out is completely opaque.

“We don’t know what their authority is,” he said, adding he and his colleagues have examined the law as well as publicly available records of CBP policies and regulations and have found no justification or direction suggesting border bans are legitimate.

This shroud of secrecy around CBP’s mandate is troubling, McKay said, especially in regards to a policy as “absurd” as banning travellers from entry for associating with a substance that is legal just steps away on either side of the borderline.

And while CBP has occasionally issued notice of policy updates via its website and through public statements by officials, no clear framework for its apparently uniform policy of border bans has ever been fully established, McKay said.

“Press statements and public statements are not the same as legal authority, and we’re trying to get at whatever their legal authority is — or what they claim their legal authority is,” he said.

And while none of the clients of McKay’s law firm have yet had the misfortune of being banned from the U.S., the fear looms large as they look to find ways to expand their businesses, he said.

“They’re all terribly concerned about it, because nobody wants to be working for a legal cannabis company in Canada with potential investments or actual investments in the United States, and all of a sudden they can’t take their kids to Disneyland anymore,” he said.

Loading... Loading... Loading... Loading... Loading... Loading...

“I mean, that’s crazy.”

McKay said the suit will “continue apace” through the federal court system, though no hearing has yet been scheduled.

“We will pursue this,” he said. “We’re going to get an answer. And in the end, we’re entitled to collect our attorney’s fees and costs against the government. And as an experienced U.S. attorney, I can say: This will have their attention. They can’t ignore this one.”

Read more about: