The gap in the treatment of controlled substances between the state and federal levels continues to widen. That has long been true with cannabis, but the trend has accelerated with psilocybin and other psychedelics recently. This growing disparity has implications under U.S. immigration law for employers and non-residents who wish to become involved in the burgeoning psychedelics industry.
Regulated psychedelics commerce is imminent
Leading the way is Oregon, with the passage of Measure 109 in 2020. The state has until December 31, 2022 to implement its regulatory legal framework to allow for the manufacture, delivery, and administration of psilocybin, a psychedelic drug found in over 200 species of fungi. Psilocybin businesses will be licensed next year, and commerce will be underway.
In neighboring Washington last month, our office worked with lawmakers to introduce a psilocybin legalization bill that would permit the state’s Department of Health to license and regulate the manufacture of psilocybin products and oversee the provision of psilocybin services to individuals aged 21 and older. That bill does not seem likely to pass this session, but it lays the groundwork for something soon.
Many other states have also begun to take steps to promote research, decriminalization or even legalization with respect to psychedelics. Our most recent round-up on that is here.
Working with psychedelics businesses on immigration
Given Harris Bricken’s experience in psychedelics law and cannabis law before it, we routinely field inquiries from prospective clients who wish to “traffic” in these controlled substances, both from within and outside the U.S.
In most foreign direct investment work (FDI), immigration attorneys collaborate with their corporate and intellectual property attorneys to help clients define the scope and strategy. When it comes to psychedelics, however, we are the first responders to explain to prospective clients why existing immigration laws and policies not just make their business propositions incompatible, but also pose serious risk to their ability to enter or remain in the United States.
Immigration law on psychedelics and controlled substances
We have previously explained that any cannabis activity –including current or even prior use, employment, or investment– can make a noncitizen inadmissible into the U.S. Even Lawful Permanent Residents of the U.S., popularly referred to as “green card holders”, are not spared in that sense. Their activity may not only prevent them from becoming U.S. citizens through naturalization, but also make them deportable from the U.S.
Many prospective noncitizen clients wonder if these immigration restrictions are hollow threats that exist only on paper. They often have doubts about the government’s ability to question and investigate any noncitizen who engages in the federally illegal drug trade. Sometimes they ask if they can use a pretext to enter the country. The answer to such questions is a categorical “No.”
How and where enforcement of immigration law occurs
Ports of entry (POEs) are the sliver of space where the U.S. has a land or water border with Canada, Mexico, Russia (Alaska), and the Bahamas (Florida). At such POEs and at its preclearance posts at foreign airports, the U.S. Customs and Border Protection (CBP) has the authority to question all travelers about the nature and purpose of their entry into the U.S.
The Immigration and Nationality Act grants broad authority to CBP officers to deny foreign nationals entry into the U.S. The laws also give the CBP broad authority to search all “persons, baggage and merchandise” arriving into the U.S. The search authority also extends to digital devices, including mobile phones and laptops.
At POEs and preclearance posts, the legal status of psychedelics or any other controlled substance in a particular state does not matter. Federal law governs. And, under the federal Controlled Substances Act (CSA), psilocybin and many other psychedelics drugs continue to be classified among those Schedule I drugs that: (i) have a high potential for abuse; (ii) have no currently accepted medical use in treatment in the U.S.; and (iii) lack accepted safety for use under medical supervision.
We have seen in the context of cannabis that it also makes no difference if a Canadian investor (who legally invests in a country that has legalized cannabis nationwide) is traveling to attend a cannabis trade show in Washington (one of 18 states that has legalized recreational marijuana). As a Canadian citizen, the investor would be subject to U.S. federal law when attempting to travel to the U.S. by air, land, or sea.
It is not just the law but also access to information that is on the side of CBP officers. They also have access to passenger manifests, usually well before a foreign national appears at a preclearance or lands at a POE. With the task of cross-referencing government databases with airline manifests or license plates faster than ever, CBP officers are trained to ask intelligent questions and observe body language to determine who may need to undergo secondary inspections.
In such rigorous screenings, if noncitizens do not volunteer potentially derogatory information, CBP officers find a way to extract it. If cursory searches of digital devices reveal contradictory information (such as emails or calendar appointments with prospective employers, associates, or clients, for example), the noncitizen may become inadmissible, not because of a finding of a controlled substance violation, but for a more severe finding of misrepresentation or fraud.
The future of psychedelics and U.S. immigration law
There are parallels between cannabis and psychedelics outside the immigration context. However, the continued restrictive classification of psilocybin is even more confounding given that the U.S. Food and Drug Administration previously designated psilocybin and MDMA as “breakthrough therapies,” to treat depression and PTSD, respectively. Psilocybin and MDMA are currently in advanced drug trials.
Until a coherent and concerted strategy to reschedule psilocybin bears fruit, or until certain drugs like MDMA find footing as FDA approved pharmaceuticals, administered via DEA licensure, psychedelics and immigration law will continue to be at odds. Noncitizens of the U.S. would do well to remain vigilant and steer clear of temptations to engage in cannabis and psychedelics activities– from personal use to employment.
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