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.

Consequences Arising from the Presidents Executive Order on Immigration

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community. 

Below are some of the highlights that we believe may directly impact our firm’s clients: 

Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations). The EO indicates that additional countries could be added to the list as determined by DHS and DOS. After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures. During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

• Dual Nationals
  • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
• U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
  • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
  • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
• U.S. LPR’s (inc. Conditional LPR’s)
  • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare. 
  • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
• Canadians
  • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

• U.S. Dept. of State (DOS)
  • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
• U.S. Customs & Border Protection (CBP)
  • CBP is denying entry to individuals from these designated countries despite their facially valid visas. 
  • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
• U.S. Citizenship & Immigration Services (USCIS)
  • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.). 
  • It is unclear whether Humanitarian Parole may still be available to affected individuals.
• U.S. Immigration & Customs Enforcement (ICE)
  • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
  • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal. 

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk. The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us. We look forward to assisting you.

Client Successfully Re-admitted to the U.S. in F-1 status

Client, a Canadian citizen, approached SRW Border Lawyers after she was denied entry into the U.S. in F-1 status, after an overnight trip to Canada. At the time, Client was on approved medical leave from her PhD program at a prominent U.S. university. CBP determined that Client had violated the terms of her F-1 status during her approved medical leave. CBP took issue with Client engaging in outside learning for her own intellectual development while on leave. CBP was also concerned that Client violated her F-1 status because she was not living on campus fulltime.

After reviewing the client’s case, we did not agree with CBP’s determination that Client had violated the terms of her F-1 status. Specifically, we noted that there is nothing in the law stating that an individual must remain on campus while on approved medical leave or that an individual cannot engage in any outside learning during their approved medical leave. We also confirmed that CBP erroneously advised Client that she was not eligible for re-admission in F-1 status until she resumed a full course load of study.

Client engaged SRW Border Lawyers to prepare and submit a packet to CBP Officials, which outlined Client’s continued eligibility for F-1 status and requested that Client be re-admitted to the U.S. in F-1 status. After working with CBP Officials for several weeks, Client was properly re-admitted to the U.S. in F-1 status.

Applicant/Client Testimonial - “Based on a strong recommendation from those in the legal field in Toronto, Canada, I reached out to Serotte Reich Wilson Immigration Law in Buffalo, NY and without delay I was able to consult with the senior partners in the firm. I have contacted and consulted other immigration law firms in the U.S. during this time but their utmost professionalism, empathy, and expediency made my decision to entrust my case with Serotte Reich Wilson an easy one. During the course of next 3 months, Ms. Zabrina Reich and Ms. Nisha Fontaine worked ceaselessly to resolve the issue and with their expertise I was able to re-enter the U.S. with the F-1 Visa. More importantly, Ms. Zabrina Reich’s professionalism extended beyond the initial successful border crossing as she continued to impart her legal advice with my subsequent travels into the U.S. under the F-1 Visa.

I can assert with confidence that Serotte Reich Wilson Immigration Law is an exceptional firm with seasoned professionals who address individual case with utmost expertise and care. Based on my experience with Serotte Reich Wilson Immigration Law, I cannot recommend the firm enough to all those seeking legal assistance with U.S. immigration law."

I was denied entry into the U.S. due to a criminal conviction. I applied for a waiver, but it was only valid for one (1) year. Since I am 76-years-old, is there a more permanent solution?

Question:

Dear SRW Border Lawyers,

I am a Canadian citizen, and I live in Manitoba, Canada. In 1982, I made the terrible mistake of removing 5 rotary tables (each valued at approximated $50,000) from my business. The reason I took the tables, although well intentioned, in retrospect, was foolish. My company had fallen on hard times and it was eventually taken over by a bank. As a result of the take over, I had to fire all of my employees, which was incredibly difficult to do, but it was my only choice. I discussed with my employees how I could compensate them for some lost holiday pay, which the bank was unwilling to pay. As a result, I decided that I would take 5 rotary tables from the shop, sell them, and pay the employees with the proceeds. The rotary tables were sold to a company in California. Following the purchase of the tables, an employee told the police of the transaction and I was arrested and charged with theft. At my trial, I was prepared to plead not guilty, but my lawyer advised me to plead guilty as charged. I was convicted and ordered to serve 15 months in jail. I served half of my sentence in jail before being paroled for the remainder of the time. I know that taking the tables was wrong, but I did it to support my employees and their families. I have since restarted my business and it is financially sound and successful.

Three years ago, I tried to enter the United States, as I had done many times before, to attend an industry trade show. My line of work requires that I travel to the United States to inspect possible equipment before I purchase anything. At the border, the officer questioned me about the conviction. The officer informed me that due to my criminal conviction in 1986, I can no longer enter the United States without first obtaining a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. I couldn’t believe after such a long period time of going back and forth across the border that I was now being denied entry! Beyond the 1986 conviction, I have no other criminal record whatsoever!

Several months after my denial, I applied for the waiver and was later approved for one (1) year. The waiver has since expired. Because I am advanced in age, is there a more permanent solution to my problem? I do not want to continue to apply for waivers, especially if I am going to be issued waivers that only last for one (1) year at a time.

Answer:

Thank you for your question.

We are hearing more and more cases of individuals who are being denied entry into the United States after years of unfettered access. The denials are often based on a single conviction that occurred over 20 years ago. One reason for these types of denials is the fact that local law enforcement agencies are now able to access records that they were previously unable to.

As you already know, certain criminal convictions can prevent you from entering the United States, unless you first acquire a nonimmigrant waiver. Based on the date of conviction, type of conviction and circumstances surrounding the conviction, we sometimes recommend that a client consult with an experienced criminal attorney to review his or her criminal history to determine if there were any legal or technical defects in the underlying criminal proceedings. If so, it may be prudent to discuss attempting to vacate his or her previous criminal conviction. Current legal precedent states that a vacated conviction will no longer count for U.S. immigration purposes if the conviction was vacated because of some type of legal or technical defect during the criminal proceeding (e.g. ineffective assistance of counsel). A vacated conviction solely to circumvent the immigration consequences of the conviction will be insufficient to remove the immigration consequences.

In order to determine your best strategy moving forward and provide you with a thorough professional analysis, we would recommend that you schedule a consultation with our office. Should our review determine that continuing to file for your waiver is your only option – there is one glimmer of hope. While the Admissibility Review Office (ARO), the office which adjudicates these waiver applications worldwide, initially grants the waiver for a period of one (1) year, subsequent waivers can be approved for up to a five (5) year period, thereby easing the burden with reapplying. Thus, we can discuss with you potential methods to request that your next waiver be approved for a longer period of time.

We look forward to speaking with you and assisting you with your U.S. immigration matters.