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.

Breaking News: Supreme Court Strikes Down “Crime of Violence” Definition as Vague

In the much-anticipated Sessions v. Dimaya case, the Supreme Court, in a 5-4 decision, invalidated a provision of federal law requiring the deportation of immigrants convicted of a “crime of violence” holding that it is too vague to enforce. This decision will limit the mandatory deportation of individuals convicted of certain crimes.

This ruling applies to a category of crimes that carry a prison term of more than a year, but do not easily fit in an extensive list of “aggravated felonies” that could get any noncitizen deported – lawful permanent residents included. The length of time they have lived in the U.S. is inconsequential.

The Immigration and Nationality Act (INA) defined a “crime of violence” as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.” This loosely-defined term could be used to include burglary (whether or not it actually included violence) as well as possession of certain “dangerous weapons,” even if they are kept under lock and key and do not function.

Speaking regarding the impact of the ruling, Dimaya’s attorney, E. Joshua Rosenkranz states, “This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” said E. Joshua Rosenkranz, a lawyer for the immigrant at the center of the case.

If you have a criminal conviction on your record and want to find out more about the way this decision will affect your case, please contact us on our website or by phone at (716) 854-7525. This ruling has the potential to work in your favor.

USCIS updates plan for L-1 pilot program

In a previous post, we reported on a pilot program for Canadian L-1 visas that would temporarily affect applications presented at the border for adjudication at the Blaine, Washington state port of entry. U.S. Citizen and Immigration Services (USCIS) has provided new details on the program, which is a joint initiative by (USCIS) and Customs and Border Protection (CBP). It will only be conducted at the Blaine, Washington port of entry, and is intended to identify procedural issues and increase efficiency.

USCIS has confirmed that the pilot program will last for six months (April 30 to October 31, 2018) and further explains the process, according to a press release on the agency’s website:

• First, Canadian L-1 petitioners will submit Form I-129 and supporting evidence to the USCIS California Service Center. Fees also will be submitted to USCIS.
• USCIS emphasizes that this submission – and all correspondence related to the L-1 application – must include a cover sheet that says “Canadian L.” This is supposed to “ensure quick identification.”
• The USCIS California Service System will issue the Form I-797C receipt notice and make a decision.
• If a request for evidence (RFE) is necessary, it will be sent to the applicant by USCIS.
• After approval from USCIS, applicants must bring a copy of the approval notice to present to CBP officers at the Blaine, Washington port of entry.
• It should be noted that “CBP will continue to make the final determination on whether a Canadian L-1 applicant is admissible to the United States.”

USCIS adds that participation in the pilot program is optional for Canadian L-1 applicants at the Blaine, Washington, port of entry. CBP officers at the Blaine POE will accept the petition, but it will be adjudicated at the nearest Class A Port of Entry. (The closest ones in Washington State are at Point Roberts, Sumas, and preclearance at the Vancouver International Airport.)

Petitioners participating in the pilot program are “strongly encouraged” by CBP and USCIS to file Canadian L-1 applications with USCIS “as far in advance of travel as possible.”

Pilot program may have lasting effect on L-1 process for Canadians

Will applying for an L-1 visa at the border soon become a thing of the past? If the pilot program starting on April 30, 2018 is any indication, change may be on the horizon.

U.S. Citizen and Immigration Services (USCIS) and Customs and Border Protection (CBP) have joined forces to launch a pilot program at the port of entry in Blaine, Washington, estimated to last six months. Currently, a Canadian L-1 applicant may present their petition at any U.S. border crossing for immediate adjudication by a CBP officer. This will no longer be an option at the Blaine, Washington, port of entry for the duration of the pilot program.

Instead, applicants in the Blaine Washington State area will need to submit their L-1 applications (Form I-129 and supporting evidence) for processing at the USCIS California Service Center before CBP can admit them into the U.S. Applicants cannot seek admission in L-1 status until they receive USCIS’s approval. According to USCIS, expedited service will be provided to L-1 applicants affected by the pilot program. The specifics of the process are still being solidified but is projected that a decision -- an approval or Request for Evidence (RFE) -- will be issued within 2-3 business days of receipt. In an effort to accelerate the process, USCIS is expected to have an email address devoted to the processing of these L-1 applications to provide case updates, and it could be possible for admission to be sought upon an email confirmation of approval.

Through the preliminary pilot program, the goal is to develop a strategy that will lessen lengthy process delays and make adjudication for L-1 applications more consistent. Additionally, through the change in process, CBP officers can give their full attention to inspections and admissibility issues instead of dedicating time to on-the-spot adjudications.

Things you should know about the pilot program:

• It is currently for L-1 applications only.
• CBP will continue to allow Canadian L-1 applicants to apply for “on the spot” adjudications at all other ports of entry.

What has yet to be determined:

• Clarification regarding potential changes to the RFE process and response time. Will it decrease the number of superfluous RFEs (as intended)?
• If the pilot program is deemed successful, will this new process be nationally implemented – and how quickly will it happen?
• Will the processes for other types of applications eventually be affected?

Updates will be made as new developments arise and Serotte Reich will be keeping you posted. Questions or concerns? Contact us at 716-854-7525 or http://srwlawyers.com/contact