White Collar & Government Investigations Blog

On Memorial Day weekend 2023, an Olshan client was traveling from Canada in his car with his son to take a vacation in the U.S. They were driving over the Canadian – U.S. border at Blaine, Washington and were stopped at the border and subject to a random vehicle inspection by the Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”).  Without a specific concern, a random routine inspection nevertheless turned into a full blown search of the car, where border agents removed and inspected all of the contents of the vehicle and searched the vehicle itself for more than 2 hours, eventually finding a small prescription medication bottle in the client’s dopp kit in his luggage. The investigation report noted that there were 5 or 6 tablets in the prescription bottle that contained, amongst other medicinal ingredients, a low level of THC (marijuana).  After the find, a young border agent detained the client, and interviewed and interrogated him for several hours, ultimately accusing him of violating the Controlled Substances Act for transporting a Category I Controlled Substance (Marijuana) across the border. Despite the legalization of marijuana in a number of U.S. states, the agent required the client to continue to remain in detention at the border crossing while agents typed up a lengthy and detailed confession statement and “offered” the client to sign it.  The client felt he had no choice but to sign the form. Ultimately, despite acknowledging that the meds were a prescription to treat an ailment and pain, and that the THC levels were low, the client was denied entry into the U.S., and formally denied admissibility and expelled. The client’s son was allowed to continue his journey, and the client was left at the border, stranded. The client was listed as having been determined inadmissible for entry into the U.S. and was now required to obtain a waiver if he wished to enter the U.S. in the future. A waiver is obtained through the filing of an I 192 entry form well in advance of any travel. Without the waiver and a full grant of an I 192 application, the client would be denied at entry and would not be allowed to board any flight to the U.S.

Olshan partner Robert Appleton filed a formal Protest with the DHS, under Section 514 of the Tarriff Act, and pursued the case internally in the CBP, ultimately elevating the matter to senior levels in the DHS in Washington D.C.  After months of effort, and appeals to senior DHS officials, the CBP ultimately reversed their ruling and rescinded the denial of admissibility and expulsion order, reinstating the client’s status as admissible, and removing him from the denied entry list.  In a rare about face, in May 2024, the CBP wrote to Appleton and acknowledged that the CBP was reversing its decision, thereby eliminating any need for any further applications, waivers or appeals.  DHS also acknowledged that the agent had exceeded his authority, made an error in judgment and that a different outcome should have occurred at the border.

The client recently took a vacation trip to Maine and crossed the Canadian border into the U.S. without incident.