Controversial “Pre-Clearance Act” Expands Power of American Border Guards on Canadian Soil

A controversial Canadian bill that expands the powers of U.S. border officers working in pre-clearance zones on Canadian soil was recently given Royal Assent and is set to become law. Championed by Canada’s centrist Liberal Party, Bill C-23—commonly referred to as the Pre-Clearance Act—has been criticized as overly broad, with the potential to open the door to human rights violations.

In May 2017, a national coalition of 43 Canadian civil society organizations called the International Civil Liberties Monitoring Group voiced their concerns about Bill C-23 to Parliament. They questioned the purpose of the bill, noting that no evidence has been presented to the public that security measures need to be increased. The ICLMG’s brief and recommendations can be found here.

Broadly speaking, C-23 increases the powers afforded to American border officers working in Canadian pre-clearance zones and eliminates crucial existing restrictions. Key concerns raised by Canadian immigration attorneys include:

• U.S. border guards will be authorized to conduct strip searches and internal cavity searches when Canadian officers are “unable or unwilling” to do so. The broad language used appears to authorize U.S. border officials to conduct these searches even when Canadian officers deem them unnecessary or inappropriate.
• U.S. border guards will be allowed to carry firearms. They have not been permitted to do so in pre-clearance zones under previous legislation.
• Should a Canadian traveler attempt to enter the U.S. but change their mind for any reason, including feelings of discomfort or concern about their interactions with border officials, U.S. officials will be permitted to detain and interrogate them. Previously, the traveler would have been able to withdraw and return to Canada at any time. C-23 also eliminates a provision that barred U.S. border officials from using a citizen’s withdrawal from pre-clearance procedures as “reasonable grounds for suspicion” to detain them or work with Canadian officials to take steps like arresting the traveler.

The above issues are particularly concerning because, although the bill states that U.S. officials must still act in accordance with Canadian laws, it provides no clear legal remedy to travelers whose rights have been violated. Instead, according to the Canadian Muslim Lawyers Association, the bill “provides explicit blanket immunity” to pre-clearance officers, and only allows travelers to hold the U.S. government responsible in cases of property damage, injury, or death. Notably, there is no legal mechanism through which Canadians can hold U.S. officers responsible for discrimination, despite a recent rise in allegations of discrimination at the border. Under Bill C-23, U.S. officers in pre-clearance zones would be “virtually unaccountable,” said Vance Langford, chair of the National Immigration Law Section of the Canadian Bar Association.

The full text of the finalized bill is available on the Canadian Parliament’s website.

If you have questions about the provisions or implications of Bill C-23, including how it may affect your ability to enter the U.S. temporarily or permanently, please reach out to us. We look forward to assisting you with your immigration matter.

ERO and Underlying Charge of Inadmissibility Based on Fraud Vacated by CBP for Canadian Citizen

Our Client, a Canadian citizen, was an engineer who also worked part-time for a test-prep company in Canada as an Instructor. The test-prep company sought to send him to the U.S. for a weekend trainiForm I-601ng assignment where he would be training other prospective instructions. Being a Canadian citizen who is visa-exempt, our Client presented himself at a POE for inspection and admission in B-1 status to carry out this short-term assignment for his Canadian employer. When questioned at the POE, he explained his purpose – he was seeking to enter the U.S. to complete a training assignment on behalf of his Canadian employer for the weekend and would be returning home to Canada at its conclusion. However, he was incorrectly advised that he was not qualified to enter the U.S. in B-1 status to carry out his enumerated purpose and denied him entry.

After leaving the POE, and feeling pressured to complete the training assignment and not being advised that he could not apply again, our Client thought to seek entry at another POE. The next day, he appeared at another POE and this time, he only indicated that he was seeking to enter the U.S. to shop. However, the CBP Officer reviewed our Client’s CBP records and noticed that our Client had been denied entry the previous day and sent him to secondary inspection. During secondary inspection, our client retracted his previous statement and truthfully informed the officer that his primary purpose was still to enter the United States to complete the training assignment for his Canadian employer. At that time, our Client was issued an Order of Expedited Removal under INA §235(b)(1) based on the underlying charges of inadmissibility under INA §§ 212(a)(6)(C)(i) [Fraud/Material Misrepresentation] and (7)(A)(i)(I). Consequently, our Client was now permanently inadmissible to the United States under INA § 212(a)(6)(C)(i), and inadmissible for a five (5) year period under INA § 212(a)(9)(A)(i) based on his order of Expedited Removal. To re-enter the U.S., our Client would now minimally require a non-immigrant waiver pursuant to INA §212(d)(3) [Form I-192] or an immigrant waiver pursuant to INA §212(i) [Form I-601] to waive his inadmissibility under INA §212(a)(6)(C)(i), depending on the purpose of his entry. In addition, if he wanted to re-enter the U.S. within the five (5) year bar imposed as a consequence of the Order of Expedited Removal, our Client would need a waiver pursuant to INA §212(a)(9)(A)(iii) [Form I-212].

Concerned about his ability to re-enter the U.S. in the future, especially as a professional engineer, our Client and his employer contacted our office. We went over the incidents very carefully with our Client, reviewed the paperwork provided by CBP (Record of Sworn Statement, Order of Expedited Removal, etc.), and reviewed the purpose of our Client’s proposed entry into the U.S. Our review revealed that CBP had erred in denying our Client entry in the first place, as he had been admissible in B-1 (in lieu of H-1B) status. In addition, our review revealed that while our Client had indeed made a false statement to CBP, his false statement did not meet the definition of a ‘material’ misrepresentation as required by the applicable law/guidance. Specifically, the false statement was not material because it did not ‘tend to shut off a line of inquiry’ since the information that our Client was presumably intending to hide was available to them in their own internal records.

We submitted a detailed legal brief, together with supporting documentation, to CBP and requested that they review this incident to determine whether they agreed that the Order of Expedited Removal and the underlying charges of inadmissibility had been improvidently issued. After several weeks, we received notification from CBP that they agreed with our analysis and they would update CBP’s records to vacate the Order of Expedited Removal, as well as the underlying charge of inadmissibility under INA §212(a)(6)(C)(i). As a result, our Client is no longer inadmissible to the U.S.

Can I omit information about my spouse on the I-192 waiver application? I fear any information I provide on my application may lead to a finding of inadmissibility against her.

Question:

Dear SRW Border Lawyers, I came across your website while looking for information on filing a Form I-192 waiver. I notice that your company has deep experience in filing these types of waivers. To make a long story short, I was living in the United States in H1-B visa and then fell out of status, but remained in the United States for a long period of time. Later, I moved to Canada after receiving permanent resident status. I am now a Canadian citizen. Last year, I applied for a B1 visitor visa and tried to visit the US; however, when I applied for admission into the United States, I was stopped, questioned for a long period of time, and then expedited removed. I believe the officer at the time thought that I was trying to immigrate permanently to United States (which I was not). I have no criminal record anywhere in the world, and I am very happy living in Canada. I just wanted to visit friends and family in the United States.

My wife and children, who are also Canadian citizens, are able to travel to United States without any problems even though they too overstayed the same length of time that I did. As such, my wife is very particular about not including her name on any Form I-192s, which I may file to overcome my inadmissibility. My wife fears that her ability to travel will be impacted if her name goes on any waiver. This is the biggest reason holding me back from filing the Form I-192 for the past 10 years.

My concerns are as follows: (1) Can I omit the information about my spouse and marriage from any papers that I file with the government; and (2) will the Department of Homeland Security (DHS), Customs and Border Protections (CBP), or Admissibility Review Office (ARO) insist on having details about my wife on the waiver application?

Answer:

We would be more than happy to assist you with your immigration matter. In your email you asked if you could omit information about your spouse and marriage details when applying for a Form I-192, Application for Advance Permission to Enter a Nonimmigrant (“Form I-192”). In general, you should never omit required information from any document you file with the government. Thus, you must complete all applications, forms, and petitions truthfully. Failure to do so could subject you to a finding of fraud/misrepresentation pursuant to INA § 212(a)(6)(c), which is a lifetime bar to entering the United States.

Based on the information you provided in your email, we are not entirely sure that you need a Form I-192 waiver at this point. First, as you already may know, if you lived in the United States without any status after a certain period of time you began to accumulate unlawful presence. Based on the amount of unlawful presence you accumulate, the longer you are barred for reentry into the United States (i.e., 3 year bar vs. 10 year bar). If, however, you already remained outside the United States for more than 3 years or 10 years period (depending on your bar) you may no longer be inadmissible for unlawful presence.

You state in your email that you were issued an expedited removal order, which would bar you from entering the United States for five (5) years. Fortunately, from what you indicated, it appears that you were not issued an expedited removal order pursuant to INA 212(a)(6)(C), so you are likely not subject to a lifetime bar. Also, if 5 years has passed since the order was issued against you, you are likely no longer barred as a result of that order.

Finally, and this may be the greater troubling aspect, is that you state that your wife accumulated the same amount of unlawful presence as you did. If this is the case, your wife may need a waiver, even though she has been entering the United States without incident. This issue should be addressed, so that she does not experience any adverse immigration consequences in the future.

At this point, there is not enough information to determine if you or your wife requires a waiver, and if so, which ones. Thus, in order to properly assist you, I would strongly encourage you to set up a consultation to speak with the SRW Border Lawyer team to fully discuss these issues.

I was stopped at the border and issued an expedited removal order. I have been living in the U.S. for the past 10 years and now I am barred from returning to my home. What can I do?

Question: I was stopped at Rainbow Bridge on December 30, 2012 and was sent to secondary where I was questioned for hours. I was told by officers that I would not be allowed to enter the United States and fly back to California. I have been living in California for the past three years with my fiancé. Now, officers at the Rainbow Bridge told me that I “overstayed” and that I misrepresented myself. I was presented with a document that indicated I was barred from entering the United States for five years. I have read your blog listing many cases with hopeful options. I understand that I will need waiver(s) and was hoping I would be able to parole in for a short entry to at least put my belongings in storage (these are my belongings accumulated over my entire life that I worked hard for). I would also like to see my fiancé who is in a very emotional unstable place right now without my support and care. What are my best options? When officers questioned me, I was shocked, very nervous, and scared. This has never happened to me in all of my travels back and forth from the United States and Canada.

Answer: Thank you for your question.

Based on your email, it seems that CBP is alleging that you may have accumulated unlawful presence and is charging you with misrepresentation. We have had a considerable amount of success in resolving these issues – whether through a waiver or through requests that CBP review their previously issued decision; however, each strategy is developed on a case-by-case basis, so this is the reason why we highly encourage a consultation.

Unlawful Presence

Generally, when an individual is in the United States without proper permission/status they begin to accumulate “unlawful presence.” A (3) three-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of “more than 180 days but less than one year,” and a (10) ten-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more and who seeks admission within 10 years of his or her removal. While there are some exceptions, we do not know if any apply to you at this time without further reviewing your immigration history – especially since you indicated that you have frequently traveled back and forth from Canada in the past and you are a Canadian citizen who was likely given a ‘soft inspection’ on many instances.

Misrepresentation

Generally speaking, anyone who attempts to enter the United States through fraud/misrepresentation can be found inadmissible pursuant to INA § 212(a)(6)(C)(i). The penalty for willful misrepresentations is a lifetime bar to the United States, unless the foreign national is successfully able to have the fraud charge vacated or obtains a waiver of this ground of inadmissibility.

Expedited Removal Order

You indicated that CBP issued you a document stating that you were banned for five years from re-entering the U.S. More than likely, you were issued an Expedited Order of Removal, which is an ‘informal’ removal process which prevents you from re-entering the U.S. for a period of five years or until you are able to obtain a waiver of the same.

Parole

In your email you mention applying for parole. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time and usually involves a degree of urgency. Recently, Customs and Border Protection ("CBP") has been less willing to extend parole to anyone who does not meet a higher threshold of "humanitarian need."

Since you seem eager to understand what options may be available to you, I strongly encourage you to call our office at your earliest convenience and set up a consultation to speak with the SRW Border Lawyer team. A consultation will give us an opportunity to look closely at each aspect of your case and develop a strategy for you that addresses your unique and specific immigration matters, as well as meets your short-term and long-term goals. We look forward to hearing from you.