In September 2024, we published our article on solving the problems that Canadians often encounter when applying for entry into the United States. While most of our discussions remain valid, such as on misunderstandings, misrepresentations and waiver applications, but since then, several developments occurred that are worth updating the Canadian traveler, especially on border searches with a focus on electronic devices.

A Unique Border

The US-Canada land border is the longest boundary in the world, close to 9,000 km. The US-Mexico border, in comparison, is 1/3 in length.

The US is Canada’s number one trading partner, and the volume of trade between the two neighbouring countries is close to 20 times than that of Canada’s number 2 trading partner, China.

Almost 400,000 people cross this border daily.

To ensure legitimate travels across this long and economically crucial international border, the US Department of Homeland Security implemented the Western Hemisphere Travel Initiative, which allows Canadians to cross into US 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 (BC, ON, e.g.) were created, which contain citizenship information for this purpose; a traveller can apply to the United States Customs Border Protection and Canada Border Service Agency for a secured traveller travel document such as the Nexus card.

To make the clearance process more convenient, the US Customs Border Protection operates pre-clearance facilities in major Canadian airports, including YVR (Vancouver), YYZ (Toronto) and YUL (Montréal).

The majority of Canadians cross into the US without incidents. In fact, a Nexus card crossing at the Peach Arch border crossing between British Columbia and Washington State, for example, usually has little wait time.

Common Problems Encountered by Canadians at the Border

Sometimes, Canadians encounter problems at the border, which can result in serious consequences, such as denied admission into the US, a temporary bar to enter and sometimes, a permanent bar to enter.

These problems not only cause travel interruptions, missed business opportunities, but also stressful separations and, at times, family tragedies when a son could not attend to an elderly mother in the US, or people who could not bid farewell to loved ones before they pass.

We divide this analysis of border problems into three groups: honest mistakes/misunderstandings, misrepresentations and past criminal records. The logic behind this classification is the different treatments a Canadian can receive pursuant to US immigration law.

Legal Rights Under the US Constitution at the Border

However, before analyzing the three categories of problems, Canadians should understand the provisions of the US Constitution that apply to their interaction with the US Customs and Border Protection officials.

A common misunderstanding at a border crossing is that US 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 perception that border crossing is stressful, and in order for the US Customs and Border Protection officers to protect the American public, decisions made capriciously and arbitrarily are justified.

Here are the key points of US constitutional and immigration law that a Canadian should bear in mind:

• 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.

Questioning and Answering Questions

• 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.
  
• US pre-clearance facilities at Canadian airports are inside Canada. US Customs Border Protection does not have policing powers to detain or arrest (which explains why there are RCMP officers right outside the US inspection areas). An applicant can also withdraw their application there.

• 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 constitutes 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.

Updates on Searches – June 2025

The United States Congress summarized the current actions taken by the administration on immigration here.

The Congressional publication outlined the requirements in the Executive Order entitled “Securing Our Borders” on border measures including searches – the focus of the Executive Order however is on the US southern border, and on detention and removal processes.

Almost everyone of our clients expressed concerns lately, over the impact of these measures on potential problems in crossing the US borders, especially on searches of their electronic devices.

The United States Citizenship and Border Protection publication shows that in 2024, only 0.01% of international travellers’ electronic devices were searched. While border search statistics showed a rise on electronic devices in the first 2 quarters of 2025, the increase is insignificant: in Q2 2025 for instance, 1,000 or so more searches were conducted on all international traveler in comparison to Q2 2024.

The searches on electronic devices, especially on cellphones, are not new. The purpose of these searches is to find evidence related to a non-exhaustive list of potential violations:

• digital contraband (e.g., child pornography, classified materials, export-controlled information)
  
• terrorism-related information
  
• information relevant to a visitor’s admissibility or otherwise relevant to the enforcement of the Immigration and Nationality Act
  
• As permissible, border searches may also help detect other national security matters, as well as reveal information about transnational financial crimes, including bulk cash smuggling, and commercial crimes with a nexus to the border, such as those relating to copyright and trademark.

Searches on Passcode-Protected Devices

The legal requirements for searching a locked cellphone or computer are found in CBP Directive No. 3340-049A: Border Search of Electronic Devices (U.S. Customs and Border Protection). Although this Directive dates back to 2018, as these searches are not a new measure in 2025, the CBP still refers to the rules as set in this Directive.

Pursuant to this Directive, should a CBP officer be unable to unlock the electronic device, the officer may detain it. The detention period must be reviewed by a director of operations, and it is generally limited to 5-7 days.

Limitations on Searches

Section 5.1.2 of this Directive further limits such searches to information resident on the phone, for instance, as opposed to that stored in the cloud. It specifically required the CBP officer to disable network access in limiting such searches.

Medical information, journalists’ confidential information and especially attorney-client privileged communications continue to be protected.

In the event when you face searches, potential immigration detention, arrest and removal, more Forth and Fifth Amendments requirements need to be satisfied, and these requirements are more complex than the foregoing – you should immediately give us a call at (604) 800-4628 when faced with such circumstances.

Innocent Mistakes and Misunderstandings

Due to mistakes, many people have had experiences when they were denied entry. Here are some of the scenarios of our clients:

• With no intention of working in the US, and with a legitimate purpose of entering the US as a business visitor, the applicants supplied mixed information (meeting clients, signing contracts, bringing over equipment…) that rose the US Customs Border Protection officer’s suspicion over potentially working in the US without authorization.
  
• Supporting documents that were not in English suffered from translation and authentication issues, e.g., non-English foreign academic transcripts for a TN professional’s work visa, and a mere verbal explanation could not satisfy the legal requirements that must be met.
  
• Transporting equipment (e.g. for a geological survey) on the same trip to meet with American engineers for a meeting, but with no documentation to show work in the US is involved.

Often, the US 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).

We often see this scenario after the Canadian traveller has been warned in the past about their documentation, but has not prepared for their next entry. The more frequently an entry becomes problematic, the more difficult it becomes for 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, he/she should contact an attorney to try to efficiently resolve the issue – this is often the least onerous and most economical way.

Misrepresentation and Fraud

Denial of entry due to making a wilful misrepresentation or fraudulent statement to a US 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 US Customs Border Protection officer often started normally, but the inconsistency in the applicant’s statements raised the officer’s suspicion, who would send the applicant into the CBP building for a secondary inspection. Some of the statements our clients made include the following:

• Very frequently, their past immigration status in the US, including their past Green Cards, working in the US, but the work visa expired, or overstaying visitor visas. The US Customs Border Protection officer has access to an applicant’s immigration records, and untruthful statements can then be checked against that record.
  
• Untruthful statement about their intended working arrangements in the US, but these arrangements were without a work visa. Sometimes, these statements were due to time pressure to start working; sometimes, the applicant could not satisfy the work visa requirements.
  
• The US Customs and Border Protection officer could make a finding of fraud when the applicant procured help in the US in a scheme to deceive the authorities. Fraud entails more severe inadmissibility penalties such as expediated 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) provides an authorization for an applicant to apply for a waiver, which we will discuss further.

Past Criminal Convictions and Inadmissibility

There are numerous grounds of immigration inadmissibility 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 this category of inadmissibility include the following:

• Difficulties to retrieve dated court record about the conviction, records of completing the sentences etc. If the conviction was before a US 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 and some time ago, electronic retrieval may not be possible and a trip in person has to be made. Overseas records, if not in English, would need translation and authentication.
  
• Illegal entries into the US whose records are difficult to locate. To further complicated thing, if the Canadian were later deported, and the deportation records were incomplete, effort is required to locate that records.
  
• Often, a Canadian has been traveling to the US 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 US will be difficult to compile since he/she did not contemplate preserving it prior to the border problem occurred.

We have attended the US Federal District Court to assist clients to correct or update their records. We also had experience in obtaining records from the National Archives on past convictions.

We assisted clients in successfully:

• applying for waivers using Form I-192: Application for Advance Permission to Enter as Nonimmigrant;
  
• when an application was denied, applying for a review of that application at the Admissibility Review Office. The ARO is a review office within Customs and Border Protection, and an application for a review must be filed 30 days after denial.
  
• appealing to the Board of Immigration Appeals. 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.
  

Contact Roland Luo in Vancouver for Comprehensive Support in Canadian-US Immigration Matters

US 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.

Only qualified attorneys licensed by a US state can advise and counsel you when a problem occurs.

This article is only intended to provide an overview of this rather vast and evolving topic and cannot be relied on as legal advice, as each case is unique. If you have encountered difficulties at the US border, Roland Luo can help. Contact Roland by calling (604) 800-4628 or by filling out our online form here.