By:  William Z. Reich, Esq.

As we approach Election Day, I believe that we should be asking ourselves – From an immigration perspective, are we treating our ally from the north, Canada, with the kind of sensitivity and consideration that is due to a true friend?

Canada, our greatest trading partner, shares our democratic approach and the associated freedoms and deep rooted values of liberty - freedom of speech, association, religion - and acceptance of a diverse population of immigrants.

These shared values have been an important reason why Canada has been supportive of our international initiatives to defend the principals of democracy and peace throughout the world.  Sometimes, Canada frequently serves as our ears and spokesperson with countries with which we have no relations.  If you recall, Canada has also come to our aid in the past such as helping us during the hostage crisis in the 80’s by helping smuggle out some of the hostages from Iran.  

With the above historical background in mind, it is important to consider the question “How are we treating Canada and thus its citizens, from an immigration perspective?”

As you may be aware, Canada is one of our partners under the North American Free Trade Agreement (NAFTA) and I have already published a number of other blog postings discussing the obstacles that CBP officers sometimes unnecessarily impose on qualified Canadians who are attempting to engage in employment with U.S. employers [TN status] – which serves to defeat the very transparent manner that was foreseen and provided for under NAFTA.

In this message I would like to focus on the mistreatment of our Canadian neighbors and partners who, for minor immigration lapses (often born out of ignorance rather than an intent to violate our U.S. immigration laws), receive disproportional punishment which can sometimes carry lifetime consequences not only for them, but for their U.S. citizen family members.  

There is a fundamental principle in law that punishment or retaliation for an infraction must be proportionate to the infraction itself.  Permit me to review a couple of examples with you to see if you believe this principle is being adhered to in dealing with our Canadian neighbor:

Ex 1.   A young couple, one a Canadian citizen and one a U.S. citizen, is planning to get married in the U.S. so that their family and friends can attend this joyous event.  They set a date, rented the hall and made all of the arrangements. They also investigate the necessary immigration requirements for the Canadian citizen to become a permanent resident of the U.S. and began the process.  However, they did not factor in any unforeseen delays with the immigration process.  When the time came for their wedding, before the Canadian citizen was able to finish the immigrant visa process, the couple, together with other family members, crossed the border into the U.S. and told CBP officer’s that they were going to spend a long weekend in the United States (which was true). However, after searching the vehicle and finding evidence of the wedding event, CBP official’s charge the Canadian citizen bride and assorted Canadian citizen family members with fraud, which carries a lifetime ban.

Looking at it from the CBP officials’ lens, there was a misrepresentation and the charge maybe could be legally justified - however, were there any security issues implicated here? Had these folks been warned about the seriousness of the misrepresentation? Had they been given the opportunity to withdraw their application for admission at any time? Could they have been paroled in for the wedding and be educated on the consequences and seriousness of misrepresentations at the border without stigmatizing them for life with a fraud ban?

This is not a hypothetical example. Our office has represented a number of young couples in this very quagmire.

Ex 2.  Another common scenario is a Canadian citizen enters the U.S. to work a summer job in New York City.  Canadian citizen meets a U.S. citizen and begins dating. As the summer internship winds down, the Canadian citizen would like to remain in the United States to further explore that relationship. Realizing that the Canadian citizen has no work authorization, the Canadian citizen does not attempt to gain employment.  However, the Canadian citizen does extend the apartment lease and continues to remain in the United States (arguably, as an undocumented individual).

The Canadian citizen then goes back to visit family in Canada and upon trying to return to the U.S. to her apartment, friends and a pet that she left behind, she misstates her reason for entering the United States and ends up being barred for five years by the issuance by an Expedited Order of Removal.

Was there another way that CBP could have handled this set of facts? Could the Canadian citizen have been permitted to withdraw her application for her entry? Could she have been admitted for a short period of time to collect her belongings and have been explained what the proper parameters of a visit are?

The point being made is that there are other less arduous tactics that CBP officers can sometimes utilize that would not impose the requirements of waivers for future entries and otherwise blemish the immigration record of an individual who has likely never had any problems crossing the border before.

Interestingly, the CBP Inspectors Field Manual specifically speaks to other less distressing practices that could be utilized (such as allowing the applicant to withdraw their application for admission), but CBP officers continue to harshly penalize Canadian applicants in “soft” types of border incidents where a gentler approach would’ve been more appropriate.

The examples above highlight the ‘overreaction’ of CBP officers in using the expedited removal process -which was originally put in place by Congress to deter applicants who were flooding the ports of entry with fraudulent documents.  For those of you not familiar with the expedited order process, this process allows CBP Officers at the border to order the removal of individuals for fraud (a lifetime bar) or as an intending immigrant (five year bar), without a hearing before an Immigration judge or an ability to appeal such an order.

Given that none of the examples above implicated the security or safety of America, one would ask why are we doing this?  As we approach election time, we should listen very carefully to the candidates because the entire policy of immigration law will dictate the way we calibrate our immigration process going forward.