Canadians increasingly subject to five-year bans from U.S., say lawyers

U.S. border guards are now issuing five-year bans to Canadians and other non-citizens at a higher rate than before, according to immigration lawyers interviewed by The Northern Light.

Five-year bans, formally called expedited removals, used to be issued in cases of egregious conduct such as lying to a border guard or being caught working in the U.S. illegally. But immigration lawyers say that the bans are now being issued more liberally, including when visitors lack the right documents or are simply unaware of the rules.

“I’m getting tons of cases where people come to the border and don’t have the right documents or they are naïve in what they are doing, and they get five-year bars,” said Blaine immigration lawyer Len Saunders, who noted a case in which a Canadian professional was banned from the U.S. for having a notarized, rather than an original, copy of his college degree.

Saunders described a recent case in which a Canadian woman married an American man. After the wedding ceremony took place in Surrey, B.C., the two attempted to cross the border into the U.S., where they planned to spend two months at the husband’s house. The woman was issued a five-year ban. “In the past, they would have done a simple denied entry and said you really need to apply for a green card and don’t come back until it’s been approved or there’s proof that you’ve filed,” said Saunders.

In another case, a Canadian man got a temporary job working for a winery on the Canadian side of the border. However, he decided to reside at his girlfriend’s parents’ condo on the American side of the border during this period. After crossing the border every day to go to and from work for a few months, he was banned from entering the U.S., because officials believed he intended to immigrate there.

In a third case, two Canadian men were going to Montana to film a fly-fishing documentary. They didn’t have work permits or journalist visas. Because the border guard thought that they had the potential of filming the movie commercially, they were denied entry and given five-year bans. “When you get an expedited removal, the officer at the border is judge, jury and hangman,” said Saunders.

Andrew Hayes, a U.S. immigration lawyer based in Vancouver, B.C., said he has also noticed an uptick in expedited removals in his law practice. He said that they used to be very common for people who have lied at the border, but are now being issued for people who are simply “bumbling into it” – for example, by admitting, “I’m coming to move in.”

Hayes said that the law is written in such a way that U.S. Customs and Border Protection (CBP) is essentially required to treat every visitor as an intending immigrant, until they satisfy the officer that they should be admitted under a different classification. Furthermore, the law mandates the removal of undocumented immigrants, saying that they “shall” be removed from the U.S. “without further hearing or review” unless they plan to apply for asylum.

“All Canadians that come down are essentially already removed, legally speaking,” said Hayes. “You are presumed guilty and you have to rebut that presumption.”

Hayes said that the process of receiving a five-year ban takes anywhere from a couple of hours to seven or eight hours. He said that visitors are questioned at length by border guards, and in the process, a sworn statement is generated. “The sworn statements are interesting because they don’t reflect the entire interaction,” said Hayes. “Often the person is at the counter and has a lengthy back and forth with the officer, and talks several times with the officer. Then, at the end of that, a transcript is formed, and it doesn’t necessarily reflect the entire conversation.”

Hayes said that five-year bans are extremely difficult to reverse once they are issued. However, with the assistance of a lawyer, a request can be made to a higher-level CBP officer. “Usually it’s got to go pretty far up the chain,” he said. “They can decide whether to rescind it or not. It’s increasingly rare.”

“There’s no formal appeal,” said Greg Boos, a U.S. immigration lawyer based in Bellingham. “But every once in a while, we’re successful in getting one set aside.”

Boos said that he is increasingly seeing Canadian truckers receive five-year expedited removals. “I’ve never seen truckers get expedited removals before,” he said, noting that he recently saw at least 10 truckers put into expedited removal in just a three-week period.

Boos said the reason Canadian truckers are receiving five-year bans is because they are caught violating the “point to point” rule, which is designed to protect American truckers and prohibits foreign drivers from picking up goods at one U.S. location and delivering them to another U.S. location. Boos believes the penalties for violating the point to point rule have already been established by regulation, and that expedited removals issued for violating the point to point rule are therefore illegal.

More broadly, Boos argues that expedited removals are illegal whenever they are issued to Canadian citizens who seek to enter the U.S. on a temporary non-immigrant basis. This is because of a regulation that waives documentary requirements for most Canadians seeking to enter the U.S. as non-immigrants. CBP does not, as a matter of law, have the authority to subject these Canadians to the expedited removal process, Boos argues.

When contacted for comment, a CBP spokesperson said that the agency does not have a quota for expedited removals. “Recently there has been a slight increase in the number of expedited removals issued within the Seattle Field Office’s area of responsibility,” said the spokesperson. However, the spokesperson said that there has been no change in policy related to expedited removals.

“In accordance with law, CBP officers are issuing expedited removals to individuals who are inadmissible to the U.S. and fall within the parameters for expedited removal as established by the Immigration and Nationality Act,” said the CBP spokesperson.

“In 20 years, I’ve never seen so many expedited removals,” said Saunders. “It’s like they’re giving out speeding tickets at the border. Instead of being denied entry, they’re giving five-year bans to Canadians. It’s happening in all of the ports under the Seattle Field Office. It’s happening in Blaine, at the truck crossing, in Point Roberts, in Montana, all across the district. I’ve been told that there is a new sheriff in town.” He added that he had been contacted by a number of Canadian TV and radio newsrooms seeking insight into the new development.