Canadians banned from U.S.: Dos and don’ts at the border

Rochelle Trepanier was planning on visiting her boyfriend in California, a trip she had made many times over the past two years. But this time was different. Officials with the U.S. Customs and Border Protection wanted more proof she had ties to Canada and would return. She failed to satisfy their demands and was ultimately banned for five years.

Trepanier is the latest in a spate of travel bans against Canadians by U.S. CPB agents that is drawing attention to the increased scrutiny some Canadians are encountering at the border.

Border agents have wide latitude when it comes to detaining travellers they deem suspicious, and some lawyers say that latitude has expanded under U.S. President Donald Trump’s administration.

“There are certain authorizations that have come through from this administration that allows for them to increase their scope, how far they can expand their authority,” said Tim Golden, an immigration lawyer with Green and Spiegel, one of the world’s oldest immigration law practices.

Trepanier’s lawyer, U.S. immigration attorney Len Saunders, said she failed to satisfy CBP agents despite having ample documentation via cellphone bills and work stubs, because of her primary work as a tree planter in British Columbia, a seasonal job that gave her several months off. Trepanier and her boyfriend also had a wedding to attend, so she tried to cross again a few hours later at a different border where she was detained for several hours before being handed the ban.

Saunders said agents used to simply deny entry to Canadians who did not have enough documentation to show their ties to Canada.

“I’ve been practising near the border in northern Washington state for over 20 years, and I’m literally seeing one of these cases a day right now,” said Saunders, who noticed the spike this summer and believes it is localized.

“I’ve never seen them handing out these five year bars — it’s like speeding tickets.”

Nick Austin, also from B.C., was issued a five-year ban as well earlier this month after he decided to make a detour to visit an old family vacation spot on the U.S. side during his move from Vancouver Island to the Lower Mainland.

Meanwhile, Canadians in other high-profile cases have faced up to lifetime bans for trying to cross into the U.S. carrying cannabis products like cannabidiol oil or CBD, or even for being a cannabis investor.

“Since the change in administration in the U.S., I think that’s where we’ve seen the spike in denials and more stringent questioning at the border,” said Catherine Glazer, a U.S. immigration attorney with Mamann, Sandaluk & Kingwell LLP, one of Canada’s largest immigration law firms.

The consequences of running afoul of border agents have been dire for some unlucky Canadians, prompting questions over what travellers can do to mitigate the potential difficulties that may arise when crossing into the United States.

MISREPRESENTATION, LYING, AND GETTING BANNED

It is the traveller’s responsibility to satisfy border officers that they are visiting the U.S. for the stated purpose, said Glazer. If a traveller says they are going on vacation, but a border agent finds a resume, work clothes, a text, or other evidence indicating a job offer, for example, these can all be red flags.

Officers may also be suspicious if you have a lot of luggage for a short trip. Border agents may also be wary of Canadians visiting a significant other in the U.S. due to concerns they will remain stateside, get married, and stay.

If a CBP agent has concerns about a traveller’s intent (they do not have enough proof of their ties to Canada, for example), they can deny the person entry.

The challenge is that “misrepresentation” is a broad category under which people can be deemed inadmissible. Any form of lying at the border, even a seemingly innocuous one, could qualify as “misrepresentation.”

“It’s something officers use: ‘You told me one thing, now you’re telling me something different. OK, I don’t care, you lied to me, therefore you’re removed and now you’re barred for life,'” Golden said.

“There’s a variety of different things that can get you expedited removal. Ultimately, they can land on a very simple issue, which is, ‘We can’t determine your intent, so we’re going to remove you.'”

Providing false documentation, or having a criminal record could also bar you from the United States.

“It’s discretionary in that the border officer can decide to give the person a chance to clarify and be truthful and let them in, or the border officer can decide despite having lied, they’re comfortable that the person had good intentions and let them in,” said Glazer. “Or, the border officer can decide that because of the lie, the individual is going to be deemed inadmissible.”

A ban, or “expedited removal,” generally happens at land crossings and vary in length, lawyers say. That is because the traveller is technically on U.S. soil, unlike the preclearance process at Canadian airports, where agents may simply deny a traveller entry, but not a ban. However, even that is no guarantee.

“We have seen some isolated incidents of late where somebody has been expedited, removed from pre-flight inspection,” said Golden. “Those are the ones that are really kind of at the forefront of contention.”

APPLYING FOR A WAIVER

Travellers who have been barred from the U.S. can apply for a waiver that will allow them re-entry, but this can be an expensive process that takes months. The fee can cost up to US$930 depending on where you submit the forms, and applicants can incur additional costs such as lawyer fees or costs related to obtaining court records.

The application itself can be time consuming, and the applicant would need “proof of rehabilitation.”

If a person tries to apply for a waiver the day after their ban, there is a high risk the waiver will be denied, because not enough time has passed to show remorse.

“The adjudicating officer needs to be satisfied the individual is not likely to offend — the individual has been rehabilitated, the individual feels remorseful,” said Glazer.

DOS AND DON’TS

  • Immigration lawyers offer the following tips when visiting the United States:
  • Whether you are visiting for pleasure or work, be well informed of what you can and cannot do or bring
  • Do not overstay — it could come back to haunt you later
  • You can be removed from the United States without an underlying crime
  • If you are denied entry at one border, do NOT try your luck at a different one – border agents see themselves as a united front and information is shared electronically
  • If you have been banned for a set number of years and try to cross the border without a waiver, they can extend the length of the ban
  • If you are going for an extended trip, bring proof of your ties to Canada (e.g. property tax, proof of a job, a cruise itinerary or other proof of your U.S. travel plans)
  • If you are self-employed, show proof that your work is based in Canada (e.g. a contract or upcoming meeting that would require you to return home)
  • Indications that you will “facilitate” the drug trade can be risky: Even being a consultant for a cannabis company and meeting with U.S. clients could be problematic
  • Border agents could ask to see your device and its contents
  • Even after your ban expires, it will remain on your record permanently
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