Border Issues to be Aware of Before Arriving at the Border

David H. Davis - November, 2003
Immigration Lawyer with Davis & Associates Law Office

You are no doubt aware that the Customs and Immigration Officer that greets you at either the Canadian or American border along the 49th Parallel wields unlimited and unrestricted powers of search, seizure and interrogation. It is therefore extremely important and prudent for you and your guests to be aware of some of the issues that can arise.

The first and most important piece of advice I can give you is to always be prepared, at time of arrival, to answer all questions put to you by the officer truthfully. This point cannot be stressed enough. Probably the most common reason I am contacted by persons seeking immigration advice relating to border issues is because the person attempted to gain entry into either country by means of lying about their employment, criminal record or reason for travelling. There are no short cuts even when it comes to international travel. And YES travel between Canada and the United States of America qualifies as INTERNATIONAL TRAVEL. Canada is a foreign country to American citizens and vice versa. No! Canada is not the 51st State like some persons South of our Border think! So don't think travelling across the Canada/US border is the same as crossing provincial or state lines.

I do not mean to belittle the intelligence of our friendly neighbours to the South. In fact I am a big booster of ensuring friendly relations between Canada and the USA. It is not only good for business but it is the right thing to do. Unfortunately, the immigration officials who work on both sides of the border do not always remember that they are ambassadors of the country they represent and work for. As a result, the officer may be in a bad mood or tired of dealing with the same types of questions and answers. They may be short tempered and talk with a demeaning and sarcastic tone. In turn, some travellers do not really understand that they are crossing an international border and can react very disrespectfully to the interrogating officer. Combining these poor attitudes from both officer and traveller alike with the power that officers are entrusted with can make for a very difficult and embarrassing, not to mention unsuccessful, experience at the border. Thus, you must be PREPARED.

If you are a citizen of either the USA or Canada you do not require a visa to enter either country for pleasure. You do, however, carry the burden of demonstrating to the officer’s satisfaction that:

For instance, if you state that you intend to stay in Canada for two weeks to go hunting and fishing and you do not have more that $100CDN in your wallet then chances are the officer will refuse you entry into Canada as everyone knows you need more money than that to live-on while being in Canada for that period of time (even with the current exchange rate).

The reasons that one can be refused entry are: Security (you are a member of Al Qaeda), Human or International Rights Violations (you are a war criminal), Financial reasons (having very little funds as discussed above to match the period of time you advise the officer), Misrepresentation (you tell the officer you are entering Canada to go hunting for a week but in fact you are going to work in Canada as a tour operator for several months); Health (you possess a very dangerous flu virus); or, criminality/serious criminality (For Canada: convicted of drunk driving or DWI, theft over $5000.00 etc. AND FOR USA: Fraud, drug possession or trafficking etc.).

In fact, a conditional or absolute discharge does not make you admissible into the USA as the Americans do not recognize this type of judge imposed disposition. Likewise, a suspension of sentence imposed by an American judge or a misdemeanour conviction does not guarantee your entry into Canada.

Please remember that when an immigration officer asks you a direct question PLEASE, PLEASE, PLEASE just answer the question that he/she is asking you! It never ceases to amaze me to hear from clients who have to retain me after the fact to get them out of a mess that they created themselves because they tried to demonstrate their ability to cooperate by providing too much information that clearly went way beyond the actual question that was asked of them.

However, if you have a criminal record and the officer does not ask you about it and you are allowed entry, this does not make you admissible after entry as you may be in violation of the Immigration Act in Canada or the USA depending on your conviction and corresponding penalty. You may be able to cross the border numerous times over a very long period of time but eventually it will catch up with you. Further, you should be aware that you can be arrested and detained by immigration authorities for having such a conviction even if you were admitted into Canada or the USA.

I recall a client of mine who was in his early sixties and had a not so serious criminal record over twenty years old being denied entry into the USA in spite of the multiple times of being allowed entry over the same period of time. In other words, being allowed entry into either country does not negate any other prior incident criminal or otherwise that remains a part of your personal history. Just because you were admitted by one immigration officer does not mean that a subsequent officer is mandated to allow your entry into either country.

Even though all immigration officers are employed by the same government whether we are talking USA or Canada, another officer can make his/her decisions independent of any other officer at the same or different port of entry. This is why many people resort to port shopping. I personally do not advocate such measures. I always try to work out the difficulty with the original port of entry in question until all efforts are exhausted. Only then do I advise a client to take their admissibility issue to another venue.

You should also know that if you do not take the time in advance of your arrival at the border to seek proper legal advice, the officer does have the authority to allow you to withdraw your request to enter at their port whether you are at a Canadian or American port of entry. If they do allow you to withdraw your request to enter you have the advantage of seeking legal advice at that point and attempt entry at another port.

The penalties and relief that the immigration laws allow do vary between Canada and the USA.

CANADA:

The officer can provide with a document that bans you from being able to enter Canada or apply to enter for two years if you were refused entry for misrepresentation. If you have a criminal conviction for which you require a waiver you can be inadmissible for up to five years from the date of completion of jail sentence or penalty (this includes completion of probation or paying any outstanding fine or restitution). If your conviction is over five years but less than 10 years you may apply for rehabilitation (this cost can vary depending on your record). And if your conviction is over 10 years old you may apply for permanent rehabilitation depending of course on your criminal history.

In order to avoid such problems one can apply for a waiver of inadmissibility by paying a $200 cdn fee to the immigration officer and provide many documents to verify the court disposition and credibility of the applicant.

If you do have to appear before an immigration judge because the officer did not allow you to withdraw your request for entry it is sometimes possible for one to request one type of document to be issued over another in order to make it a little easier to gain entry back into Canada at some point in the future. For instance, an exclusion order is much better than a deportation order; and, a departure order is much better than an exclusion order.

USA:

The officer can record 1year, 3 year, 5 year or 10 year bar to admissibility depending on the particular circumstances of the applicant. These bars to entry can be triggered by the person departing the USA or can occur as a result of the actions/oral words by the applicant. The possibilities are too numerous to mention and largely depend on the peculiar circumstances of a given case.

Waivers are possible to overcome inadmissibility into USA. They typically take up to six months to issue. In the event that immediate entry is necessary it is also possible for an immigration officer to consider ADVANCE PAROLE. This is a very special remedy and rarely granted at many ports of entry. The terrorist attacks of September 11th, 2001 make this a complicated task not to mention the heavily bureaucratic procedure that is necessary to follow.

In conclusion, I would like to stress that the reasons that one could be refused entry are quite numerous so my advice to you or your guest is to contact the immigration official ahead of time by fax OR consult with an immigration lawyer such as myself. Consultation fees vary from one lawyer to another but are typically quite inexpensive. The advantage of requesting the initial consultation is to hopefully gain the necessary information required to decide whether entry is going to be allowed. In many instances my advice during these brief consultation sessions is all that is required for the client. The way I see it: It is a small price to pay for peace of mind.


This article was taken from pages 15-17 of NOTO's "The Outfitter" publication, Spring 2004 Issue

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