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Fact and fiction at the border

Things are not always what they appear to be when the subject is Immigration rules. Let me give you three examples.The first example is something that happens quite often. A Canadian citizen driver in...

Daniel Joyce
Daniel Joyce

Things are not always what they appear to be when the subject is Immigration rules. Let me give you three examples.

The first example is something that happens quite often. A Canadian citizen driver in his 40s knows that a relatively minor criminal violation in his past could prevent him from entering the United States. Not all convictions present problems, but many do. A narcotics conviction for possession of one marijuana cigarette will do it if the person was over 18 at the time. Similarly, breaking and entering, shoplifting or writing a bad cheque can do it, too. So, our hypothetical driver goes through the pardon process and receives a Canadian pardon. The laws of Canada allow him to answer “No” to the question “Do you have a criminal record?” He can also obtain an official RCMP criminal conviction record that is absolutely clean, showing no convictions. But is that individual admissible to the U.S.? That person may have crossed the border dozens of times, because no one ever asked for his ID and did a background check.

The second example involves a person who is refused entry at the border because of a conviction record, when in fact the person is admissible. I received a call recently from a person who had been refused entry to the U.S. that day. He told me he had no conviction record. He said that he had a pardon, so that he was able to state that he had no record. I asked him to fax a copy of his pre-pardon record to me.

It is up to the person attempting entry to prove admissibility and explain his record. The computer database may have incomplete information, and the officer will not give you the benefit of the doubt. We provided the person with an explanation of the law and instructions on how to present proof of his record to the Immigration officer at the border. Despite having been previously refused entry on the grounds that he had a criminal record, he was now able to gain admission.

Not all admissibility issues relate to criminal or drug convictions. Sometimes, people have INS violations. That is the third example. Many drivers do not understand that U.S. point-to-point movements, also called “interstating” or “cabotage,” are Immigration law violations because they constitute illegal work in the U.S. How does this come into play at the border? Canadian drivers enter the U.S. as a business visitor engaged in international commerce. The Immigration inspector may review the driver’s logbook and find a prior cabotage violation. In the eyes of the inspector, that means the driver worked illegally in the U.S. without a work visa. The Immigration inspector tells the driver that because the driver made a cabotage movement once, he will probably do it again. The driver cannot be classified as a visitor, and cannot be admitted. The driver has to convince the Immigration officer that he understands the rules, that he has a good explanation for the previous violation, that he regrets the mistake, and that he and his employer will not do it again.

If the Immigration officer finds the driver to be untruthful in discussing the activities, the driver can be refused entry on the grounds that he tried to enter the U.S. through misrepresentation. That person is permanently barred from the U.S., like the person with the criminal record, and will need a waiver in order to gain entry again.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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