Law and the Border: Be Careful and Be Patient at the Border

by Daniel Joyce

I remember the first time I had to go to the border to meet a client who was applying for a work visa. It was in 1990, during the early days of the U.S.-Canada Free Trade Agreement. Previously, visa applications were generally conducted through the mail, but the new Free Trade Agreement allowed certain types of applications to be made by Canadian citizens at the border.

I remember driving to the border and finding the parking area used for persons sent into “secondary inspection.” (Primary inspection is the questions and answers made through your vehicle window with the Immigration Officer in the booth; secondary inspection is when you get sent inside.) The parking area was convenient because it is sheltered from the rain and snow that one encounters in Buffalo during the course of the year.

There was nothing really memorable about that day in 1990, other than a recollection that I had to find my way through an unfamiliar place with unfamiliar procedures. Experience with one’s job involves not only gaining more knowledge about one’s area of expertise, but also more knowledge about practical things such as the name of the person who answers the customer’s phone, or the best place to eat in a particular town. On that particular day, I learned where to park.

In the years since that day, I have parked in the same area hundreds of times. Recently, something happened that made me realize that you have to be ready for change. I arrived at the border as I had done many times in the past, and pulled into one of the empty spaces in the secondary inspection parking area. Before I could even get out of my car, an immigration officer was tapping on my window.

“Were you told to park here?” she asked.

“No,” I responded, “I’m here to meet with a client who is coming across from Canada.”

“You can’t park here anymore.”

And that was that. After 13 years, the rules changed quickly. How quickly? Inside secondary inspection I ran into another attorney, and I asked him when the parking rule changed. “I guess today,” he said. “I was here yesterday and this didn’t happen.”

The experience is a small example of things that are happening at the border as the U.S. Department of Homeland Security begins to implement its drastic restructuring of the Customs and Immigration system. It is a massive undertaking that cannot be accomplished without some growing pains and some change. People who cross the border frequently need to be aware of this, and be patient.

There are a number of things that are converging and causing the changes at the border. We all know that enhanced national security has been the highest priority, and one of the main reasons for scrapping the previous system and separating the national security function of border control from the immigration “benefits” function of processing visa and citizenship applications. There are many new faces at the border. Some are prior Customs officers who have been trained in combined immigration and customs inspection procedures. Others are new inspectors who have been hired and trained within the past year. Even some supervisors are fairly new.

Those factors can lead to some undesirable consequences. The driver needs to be able to respond when that happens.

Mistakes: Many inspectors are still learning their jobs and have not been exposed in the field to everything they may have learned in the classroom. We have seen mistakes in the way the immigration laws have been interpreted and applied.

Lack of discretion: A good immigration inspector develops a “sixth sense” over time to detect people who are lying or otherwise trying to enter the country for an illegal purpose. No inspector wants to have his or her name on the document that allows a terrorist in the country, and no one wants to be criticized for mistakes during a performance review by a superior. A large part of the inspector’s job is to make judgment calls in those gray areas that don’t fall into simple categories of black or white. If the inspector is inexperienced or uncertain, it is easier to say “No” than “Yes.”

Inconvenience: You may be refused entry, there could be kilometers-long backups in the truck lines at the bridges, you could lose valuable on-duty time, deliveries could be late, and so on. Or, in my case, you may be told on one of the rainiest days of the year that you can’t park under the covered parking area in secondary inspection.

The primary goal of this column has always been to prepare the driver to meet the challenges that are a part of cross -border transportation. That doesn’t mean winning arguments with immigration inspectors. If you are in an argument, you have probably already lost. The goal isn’t to win arguments, the goal is to cross the border, get past the customs and immigration inspection, and move on down the road without an argument. The best thing you can do is know the rules, identify potential issues in advance, and be prepared to respond to them.

Don’t let the issue fall into the gray area; bring documentation with you that shows that it is black or white. If you think the inspector is mistaken, politely ask to speak to a supervisor. If that fails, politely ask to be able to leave and return with better documentation.

And what about inconvenience? A number of colourful things came to mind as I parked in an open lot and then ran toward safety from the hail and driving rain.

But sometimes there isn’t anything you can do. So I got wet.

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

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