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Border Patrol seizes medical marijuana in New Mexico

Copyright © 2014 Albuquerque Journal

LAS CRUCES – Juanita Kientz travels twice a month to Albuquerque for chemotherapy but has to leave behind the “medicine” that makes her feel better.

That’s because the 72-year-old says she fears the Border Patrol will confiscate the marijuana-laced chocolates that she eats to quell nausea and restore her appetite following those difficult treatments.

Card-carrying patients of New Mexico’s medical cannibis program living in the state’s second-largest city are hemmed in by Border Patrol checkpoints and cannot travel elsewhere in the state without concern they’ll run into trouble with border agents.

While federal institutions including the Department of Justice and FDIC have modified how they respond to federal drug law as more states create legal frameworks for marijuana use, Customs and Border Protection has not.

New Mexico’s state and federal representatives are asking the agency to revisit its policy.

State Rep. Bill McCamley, D-Las Cruces, last week sent a letter to CBP Commissioner Gil Kerlikowske questioning the Border Patrol’s enforcement of federal drug law – specifically, the seizing of legal quantities of medical marijuana – at checkpoints in southern New Mexico. Rep. Michelle Lujan Grisham, D-N.M., backed the letter, as did U.S. Sens. Martin Heinrich and Tom Udall.

“Their argument is that, at the federal level, marijuana is still illegal and that is correct,” McCamley said. “However, with states like Colorado and Washington legalizing marijuana, most of the agencies of the federal government have changed their policies to reflect the reality.”

The Department of Justice began relaxing its policy for enforcement of federal drug law as early as 2009, when it underscored its mission of prosecuting illegal drug traffickers but also said “it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law.”

The DOJ updated its policy last August by specifying eight enforcement areas that federal prosecutors should prioritize, including preventing revenue from the state-sanctioned sale of marijuana from ending up in criminal hands, and keeping marijuana legalized in one state from being trafficked to another where it is illegal. The U.S. Attorney’s Office in New Mexico confirmed it follows those guidelines.

In another area, federal bank deposit insurer FDIC in February ended a policy of preventing its banks from doing business with legal marijuana producers and dispensaries.

CBP has not followed suit.

The Border Patrol “enforces federal law,” El Paso Sector Border Patrol spokesman Ramiro Cordero said in an emailed response to questions. “Illegal substances found by U.S. Border Patrol agents during inspections/searches are subject to seizure and will be seized,” he said, although prosecution “will be considered on a case by case basis in consultation with the U.S. Attorney’s Office and our investigative partners.”

Cordero said the Border Patrol does not break out seizures of medical marijuana from statistics of overall marijuana seizures but said a review of a sample of seizures did not turn up any confiscations of medical marijuana.

Producers and patients speak anecdotally of people being stopped at Border Patrol checkpoints and having their medical marijuana taken, but rarely being detained or arrested.

McCamley has requested that CBP revise its policy to follow the DOJ’s guidelines.

“Their official policy is to detain folks and seize their medicine,” he said. “Other agencies are being more moderated and understanding what states want to do.”

In southern New Mexico, he said, “legal card-carrying medical marijuana patients can’t carry their marijuana anywhere else in the state.”

MJ Express-O, a Truth or Consequences-based medicinal cannibis producer, delivers to Las Cruces weekly. The Border Patrol will confiscate the drug at a checkpoint if any is left over on the ride north, said patient advocate Melissa Loomis.

“We understand they are doing their job,” she said. “So we need to change the law.”