Have you encountered problems when applying for entry into the United States? Were you denied entry due to lack of documentation to prove the intended purpose of your visit, have you been accused of saying something that was untrue, or has a past conviction put your status as inadmissible? Border issues can be highly stressful and generally require quick, decisive action, which is why it is important to understand your rights and responsibilities when travelling internationally.
This two-part blog series will aim to answer your questions related to immigration issues when crossing the Canada-U.S. border. Part one of this series will address issues that Canadians may face when entering the United States. In part two, we will focus on identifying problems American travellers may encounter when attempting to enter Canada.
A Unique Border: Canada and the United States of America
The United States (the “U.S.”) is Canada’s number 1 trading partner, with the volume of trade between the two neighbouring countries being close to 20 times than that of Canada’s number 2 trading partner, China.
The interactions that Canadians have with the United States Customs and Border Protection officers has to be understood in the context of this unique border between the two countries. The United States-Canada land border is the longest boundary in the world, close to 9,000 km. Almost 400,000 people cross the border daily. The United States-Mexico border, in comparison, is 1/3 of the size.
Enhanced Identification Documents Contain Citizenship Information
To ensure legitimate travels across this long, and economically crucial international border, the U.S. Department of Homeland Security has implemented the Western Hemisphere Travel Initiative, which allows Canadians to cross into the U.S. by land without a passport. This does not mean that you should attempt to cross the border using non-enhanced identity documents that do not prove your Canadian citizenship. In fact, enhanced driver licenses (such as those in British Columbia and Ontario) were created to contain citizenship information for this purpose. A traveler can apply to the United States Customs Border Protection and Canada Border Service Agency for a secured traveler travel document, such as the Nexus card.
Efficient Border Crossing
To make the clearance process more convenient, the U.S. Customs Border Protection operates pre-clearance facilities in major Canadian airports including YVR (Vancouver), YYZ (Toronto) and YUL (Montreal).
Generally, the majority of Canadians are able to successfully cross into the U.S. without incident. For instance, a Nexus card crossing at the Peace Arch border crossing between British Columbia and Washington State usually has little wait time. However, not every traveller experiences such a seamless border crossing.
Legal Rights Under the U.S. Constitution at the Border
Canadians should understand the provisions of the U.S. Constitution which apply to their interaction with the U.S. Customs Border Protection officials.
A common misunderstanding at a border crossing is that U.S. border officials have unconstrained, or unlimited powers to question, detain, search and seizure, and that there is little recourse that a Canadian, or an “alien”, has. There is also a public perception that border crossing is stressful, and in order for the US Customs Border Protection officers to protect the American public, decisions made capriciously and arbitrarily are justified.
There are several key pieces of information derived from U.S. constitutional and immigration law that a Canadian should bear in mind, including:
· The Fourth Amendment to the United States Constitution prohibits government searches and seizures that are unreasonable. This Amendment balances on the one end of the spectrum, an individual’s rights to protect his/her personal affairs including privacy; on the other end, it enables the government to carry out important functions such as protecting public safety. That is why neither right is absolute, thus they both have limitations.
· To enable Customs Border Protection to process the large number of applications for admission into the US, the United States Congress gave the officials broader latitude (broader compared to the more constrained policing powers of search and seizure inside the US) to search, question, detain and remove foreign nationals, but these powers are not unlimited, and they must satisfy the Fourth Amendment requirements.
Questions and Answers
· Under the United States Immigration and Nationality Act § 287(a)(1), a Border Protection officer may, without a warrant, “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.”
· The United States Supreme Court has held that government officers do not violate the Fourth Amendment by merely questioning individuals in public places, provided those persons are not involuntarily detained for such questioning (Florida v. Royer, 460 U.S. 491 (1983)). What this means is Canadians need to answer the border enforcement officers questions should they intend to apply for entry into the United States, but should they change their mind, they can withdraw their application (by verbally informing the officer), and that officer should allow the withdrawal unless the officer exercises his/her power to detain, or arrest.
· U.S. pre-clearance facilities at Canadian airports are inside Canada. U.S. Customs Border Protection does not have policing powers to detain or arrest (which explains why there are RCMP officers right outside the U.S. inspection areas). An applicant can also withdraw their application there.
Searches
· Under United States Immigration and Nationality Act provisions and Department of Homeland Security regulations, an immigration officer may inspect (e.g. check identity documents) all persons entering the United States, potentially search aliens who appear to be inadmissible, and collect aliens’ biometric data.
· To conduct routine immigration searches, under what is known as the border search exception to the Fourth Amendment’s warrant requirement, Customs and Border Protection officers may conduct routine inspections and searches at the U.S. border without a warrant, probable cause, or reasonable suspicion.
· The United States Supreme Court has not defined what is a “routine” inspection and search, but a highly intrusive bodily search or one that involves destruction of personal property can be said to be out of the routine.
· In the event when you face potential immigration detention, arrest and removal, more Fourth and Fifth Amendments requirements need to be satisfied, and these requirements are more complex than the foregoing. As such, it is important to speak with an experienced immigration lawyer as soon as possible.
Common Problems Encountered by Canadians at the Border
Sometimes, Canadians encounter problems at the border, which can result in serious consequences, such as being denied admission into the US, a temporary bar to enter, or in some cases, a permanent bar to enter may be imposed.
These problems not only cause travel interruptions and missed business opportunities, but they can also result in stressful separations and at times, family tragedies, for example, when a child is unable to visit their aging parent, or a person cannot bid farewell to a loved one before they pass.
For the purposes of this blog, border-related issues will be divided into 3 groups:
- honest mistakes/misunderstandings;
- misrepresentations; and
- past criminal records.
The logic behind these classifications is the different treatment a Canadian may receive pursuant to U.S. immigration law.
Innocent Mistakes and Misunderstanding
Due to mistakes, many people have experienced being denied entry into the US. Some examples of mistakes that we have helped clients navigate are as follows:
· With no intention of working in the US, and with a legitimate purpose of entering the U.S. as a business visitor, the applicants supplied mixed information (meeting clients, signing contracts, and bringing over equipment). This raised the suspicion of the U.S. Customs Border Protection officer who queried whether the applicants would be working in the U.S. without proper authorization.
· Supporting documents that were not in English suffered from translation and authentication issues. Non-English foreign academic transcripts for a TN professional’s work visa, and a mere verbal explanation of the documents could not satisfy the legal requirements that must be met before entry is permitted.
· A traveller was transporting geological survey equipment on the same trip that they were meeting with American engineers, but had no documentation to prove that the meeting did not involve unauthorized work in the US.
Often, the U.S. Customs Border Protection officers will allow the applicant to withdraw the application for entry under the inadequate documentation provisions pursuant to Immigration and Nationality Act § 212(a)(7)(A)(i)(I). This scenario often occurs after the Canadian traveler has previously been warned about their documentation, but has not prepared for their subsequent entry. If entry into the United States regularly becomes problematic, this will make it more difficult for the traveler to have a smooth border crossing, which may result in unnecessary disruption of business and leisure travels to the US.
To prevent repeated denial of entries, once a traveler receives a first warning, they should contact a trusted immigration lawyer to try to efficiently resolve the issue. This option is often the least onerous and most economical to mitigate future travel issues.
Misrepresentation and Fraud
Denial of entry into the U.S. due to making a wilful misrepresentation or fraudulent statement to a U.S. Customs Border Protection officer can result in serious consequences, including being inadmissible into the US. Pursuant to the United States Immigration and Nationality Act §212(a)(6)(C)(i), misrepresentation and fraud are defined to be intentional and untrue statements made to an officer during immigration inspection. The difference between a misrepresentation and fraud is that the latter contains an element of trying to deceive the immigration official.
In this category, the interaction between the applicant (for entry) and the U.S. Customs Border Protection officer often begins normally, but inconsistency in the applicant’s statements may raise the officer’s suspicion. Accordingly, the applicant would be sent to the CBP building for a secondary inspection. In previous cases, we have assisted clients involved in the following scenarios:
· A traveler had struggled with their immigration status in the US, including their past Green Cards, and working in the US, with their work visa expiring and they had overstayed visitor visas. The U.S. Customs Border Protection officer has access to an applicant’s immigration records and untruthful statements can be checked against that record.
· A traveler made an untruthful statement about their intended working arrangements in the US, but these arrangements were made without a work visa. These statements may be made due to time pressure to start working, and sometimes, the applicant cannot satisfy the work visa requirements.
· The U.S. Customs Border Protection officer could make a finding of fraud when the applicant procured help in the U.S. in a scheme to deceive the authorities. Fraud entails more severe inadmissibility penalties, such as expedited removal and protracted ban from entering the US.
Each section in the United States Immigration and Nationality Act in this category (except when terrorist activities are involved) provide an authorization for an applicant to apply for a waiver, which will be discussed further.
Past Criminal Convictions and Inadmissibility
There are numerous grounds of immigration inadmissibility, which are found under Immigration and Nationality Act § 212(a). In addition to criminal convictions, for instance, pursuant to § 212(a)(6), a person can be inadmissible simply due to illegal entry.
Some of the difficulties to overcome regarding inadmissibility include the following:
· Difficulties to retrieve dated court records about the conviction or records of completing the sentences. If the conviction was before a U.S. Federal District Court, the conviction records would be transferred to the National Archives 15 years after the conviction. If the records were in a different Canadian province some time ago, electronic retrieval may not be possible, and an in-person trip may be required. Overseas records, if not originally written in English, would require translation and authentication.
· Illegal entries into the U.S. whose records are difficult to locate. To further complicate things, if the Canadian were later deported, and the deportation records were incomplete, effort is required to locate such records.
· Often, a Canadian has been traveling to the U.S. without issue due to passage of time of the past convictions, but out of sudden, a waiver is required: evidence of that traveler’s past trips to the U.S. will be difficult to compile since he/she did not contemplate preserving it prior to the border problem occurred.
Key Takeaways Regarding Issues Canadian Travellers Can Experience at the Canada-U.S. Border
Roland Law has represented clients in matters before the U.S. Federal District Court to help them correct or update their records. We also have experience obtaining records from the National Archives on past convictions. Our firm has successfully assisted clients with the following matters:
· applying for waivers using Form I-192: Application for Advance Permission to Enter as Nonimmigrant;
· applying for a review of an application that has been denied at the Admissibility Review Office (the “ARO”).. The ARO is a review office within Customs Border Protection and an application for a review must be filed within 30 days after the initial denial occurs; and
· appealing to the Board of Immigration Appeals (the “Board”). This Board is the highest administrative review office interpreting immigration law and its decisions are binding on all Department of Homeland Security officials. Once the Board overturns the Customs Border Protection decision, the inadmissibility is overcome.
U.S. immigration law, including the Department of Homeland Security regulations governing the CBP, and the practical aspects of applying the law at the border are complex. Therefore, if you are facing similar circumstances, it is important to know that only a qualified attorney licensed by a US state can advise and counsel you when an issue arises.
Contact Roland Law in Vancouver for Trusted Advice and Comprehensive Assistance With U.S. Immigration Matters
Travelers may face issues at the Canada-U.S. Border for various reasons, including inadmissibility, fraud, and honest mistakes. If you find yourself facing issues at the border, it is imperative to consult with a trusted immigration lawyer who can advise on such urgent issues. If you have encountered difficulties at the U.S. border, contact Roland Luo at Roland Law by phone at (604) 800-4628 or reach out to us through our online form to schedule a confidential consultation.