Higgins announces details on ‘essential’ and ‘non-essential’ travel guidelines

The U.S.-Canadian border is subject to new restrictions starting at 11:59pm EDT on Monday, March 20, 2020, limiting crossing at Land Ports of Entry to essential travel only. In an effort to limit the continuing spread of COVID-19, the U.S. Department of Homeland Security (DHS) will temporarily impose these restrictions until 11:59 p.m. EDT on April 20, 2020. After the 30-day period, the restrictions will be reviewed by both parties.

Congressman Brian Higgins has now made the specifics of the directive available, with details provided by the U.S. Customs and Border Protection (CBP) further defining “essential travel.” According to a press release from Congressman Higgins’ offices, “essential travel” includes, but is not limited to:

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);

• Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations. 

Traveling for tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events) is considered to be non-essential.

According to the press release, the above-listed guidelines apply to passenger rail and ferry travel between the U.S. and Canada, but do not apply to air, freight rail, or sea travel.

If you need assistance or advisement regarding an immigration matter that will be impacted by the new restrictions listed above, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

CBP Updates Statement on Canadian Legalization of Marijuana and Determining Admissibility

With the Canadian legalization of marijuana mere days away, CBP has issued an updated statement on how Canada’s new law will affect Canadians’ admissibility to the U.S. and crossing the border. The updated statement is available here.

CBP’s updated statement contradicts previous information provided by the agency and reflects a change of tune on key issues related to individuals involved in the Canadian cannabis industry. This guidance details how officers will be determining who’s admissible and who’s not, and the consequences a traveler will face if deemed inadmissible. It should be noted that this statement was quietly released; on its website, CBP simply replaced a page containing a statement released on September 21. Our blog on the initial statement can be found here.

If you plan on crossing the border after Canadian legalization of marijuana goes into effect on October 17, here are some key points on how CBP should be making admissibility determinations:

• If marijuana use is legal in Canada and an individual uses marijuana in a legal context, could this be used as the basis of determining inadmissibility?

Simply making a statement that you used marijuana legally in Canada should not make you inadmissible to the U.S. for a controlled substance violation. In fact, generally stating that you used marijuana in the past is not an admission of a controlled substance violation as this statement may or may not lead to facts that could constitute a controlled substance violation.

In order for a statement to qualify as an admission of a controlled substance violation, CBP must:

A.  Provide an adequate definition of the crime, including all of the essential elements.

B.  Explain the definition to the person in terms he or she understands, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed.

C.  Give the person a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings must be recorded verbatim.

D.  The person must then admit all of the factual elements which constituted the crime.

E.  The person’s admission of the crime must be explicit, unequivocal and unqualified.

With that being said, Canadians should avoid engaging in marijuana use in the U.S. even in jurisdictions it is legal and should be mindful that marijuana remains illegal federally in the U.S. when questioned by CBP. Additionally, Canadians should be aware that CBP does have the discretion to bar “abusers” of drugs banned in the U.S. including marijuana. Technically any level of use is considered abuse, but occasional recreational users should be okay coming to the U.S.

• If an individual works and invests in the legal Canadian cannabis industry, could this be used as the basis of determining inadmissibility?

Thankfully, CBP’s latest statement provides greater clarity of this very issue. CBP now says that “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.” This portion of the policy is the polar opposite of a statement released by CBP two weeks ago.

However, CBP’s new statement does go on to say that “if a traveler is found to be coming to the U.S. for reasons related to the marijuana industry, they may be deemed inadmissible.”

In addition to being denied admission, CBP states that “seizure, fines, and apprehension” may be the result of “crossing the border or arriving at a U.S. port of entry in violation” of U.S. federal controlled substance laws.

Travelers who are concerned about how CBP’s position on Canada’s legalization of marijuana will affect their admissibility to the U.S. should consult a qualified immigration attorney. If you need advisement on this issue or are found inadmissible, please contact us at (716) 854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

ICE adds administratively closed cases to the docket

ICE (Immigration and Customs Enforcement) is planning to restart thousands of deportation cases in accordance with the agency’s new policy. Specifically, ICE’s new policy affects foreign nationals in the U.S. whose cases are currently administratively closed. The initiative could result in the recalendaring of more than 355,000 cases – bringing the already overburdened immigration court backlog to over 1 million cases.

As background, administrative closure is a mechanism used to temporarily pause removal proceedings by removing the case from the immigration judge’s docket. Over the years, administrative closure has proven to be a vital docket-management tool for Immigration Judges across the country.  Both DHS and the immigrant have the ability to request that a case be administratively closed.   

Administrative closure does not terminate removal proceedings and it does not provide a noncitizen with any immigration status. It is merely a temporary measure that effectively tables the matter until either party moves to recalendar (reschedule) the case. Deferring removal hearings can allow the individual an opportunity to find relief that the immigration court cannot provide. During this time, the immigrant could possibly obtain an immigration benefit that is not available while an immigration case is active.

Recently, the highly effective docket-management tool has come under fire.  Thanks to a May 2018 decision issued by Attorney General Jeff Sessions, Immigration Judges and the Board of Immigration Appeals no longer have the authority to administratively close cases.  Additionally, ICE is now responsible for making the decision to recalendar cases that are currently administratively closed.  

Under the new policy, ICE prosecutors are instructed to prioritize the recalandering of cases in the following order:

1. Cases involving a foreign national being detained.

2. Cases pertaining to an immigrant with a criminal record.

3. Cases where ICE’s most recent motion to recalendar was denied.

4. Cases that were administratively closed over ICE’s objections.

5. All other cases will be recalendared on a case-by-case basis at the local office’s discretion.

These recently released instructions make it clear that ICE intends to recalander virtually all cases that have been administratively closed. This development will put an already overwhelmed immigration court system even further behind. Currently, the immigration court backlog is at 730,000 cases. With ICE’s new guidance, the backlog will exponentially grow while immigrants with administratively closed cases wait for ICE to determine their fate.

As of today’s date, ICE has already started to recalander affected cases.

Canadian Citizen Has I-212 Waiver Approved

Background: Client, a Canadian citizen, approached SRW about two years after he was issued an Expedited Removal Order (ERO) while applying to renew his TN status. During the adjudication of his TN application, Client was questioned in detail about his employment history in the U.S. and more particularly, about whether he had ever done anything outside of the scope of his non-immigrant status. While Client had honestly believed that he had never participated in any activities outside of the scope of his non-immigrant status, it was revealed that Client had inadvertently engaged in impermissible activities in connection with his wife’s prospective E-2 business.

Grounds of Inadmissibility: INA § 212(a)(9)(A)(i) - Alien previously removed pursuant to an Order of Expedited Removal under INA §235, solely under INA §212(a)(7)(A)(i)(I) [Immigrant Intent]

Consequence of ERO: As a result of the ERO, the Client was barred from reentering the U.S. for a five (5) year period – from March 2012 to March 2017. Notably, the Client and his family had been living in the U.S. since 2007 (in valid non-immigrant status), but due to the ERO, were required to return to Canada and re-establish their ties.
After returning to Canada, Client started an independent technical consulting business that served clients in both Canada and the U.S. Unfortunately, Client had lost many potential clients because he could not travel to the U.S. for meetings. Client’s biggest U.S. client had also expressed serious concerns regarding Client’s inability to travel to the U.S. for upcoming projects.

Options: After consulting with Client, we advised him that his options were to either serve out his bar of five (5) years or apply for permission to reapply for admission. We explained after the five (5) year bar was over he would not require a waiver since §212(a)(7)(A)(i)(I) is not a permanent bar. Ultimately, Client chose the latter.

SRW Waiver Strategy: Evidence of Rehabilitation (demonstrated remorse, rehabilitation and compliance with U.S. removal order); Established strong ties to Canada; Compelling reasons for entry (Inability to travel to the U.S. limiting ability to perform consulting services for current and prospective U.S. clients; U.S. travel ban impacting ability to look after U.S. investment properties; Lack of any criminal history); Nearly half of the removal bar was served at the time of filing.

Application Type: I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal

Adjudicating Agency: Admissibility Review Office (Filed @][2] Peace Bridge Port of Entry in Buffalo, New York)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2] or Employment in TN, H-1B or L-1

Adjudication Time: 77 Days