Law and the Border: Busted at the border

by Daniel Joyce

The following is the final installment of a special two-part series on border crossing.

Last month, we began to explore the interplay between U.S. Immigration waivers and Canadian pardons.

We looked at two common myths associated with Canadian pardons.

The first is, “You can’t get caught” if you have a Canadian pardon.

The second is, “You won’t get caught” if you just deny that you have a record.

We concluded that you can get caught, and that no one can guarantee that you won’t get caught. This month, we turn to the consequences of getting caught at the border.

Let’s assume you are asked questions at the border and undergo a full identity background check by the Bureau of Customs and Border Protection (BCBP) officer.

Let’s further assume that the entry is for lawful purposes, such as a visitor for business or personal reasons.

The consequences will depend upon your actual background, and your answers to the questions during inspection.

We are looking at two main variables: your admissibility due to a prior criminal record and whether or not you have a pardon.

It is impossible to make generalizations that will be true in every case. The personalities of the parties and the details of each case can affect the outcome.

The consequences discussed below are a reflection of our observations of hundreds of situations over the course of many years.

Let’s start with the person who is inadmissible and does not have a pardon.

Many people in that category have crossed the border for years because they never underwent a full inspection.

Often, the person is unsure if his record makes him inadmissible or not.

As long as you answer questions truthfully at the border, the consequences will not be severe the first time you are “caught.”

In order to deter repeated attempts at entry, the consequences are more severe for people who attempt entry to the United States with knowledge that they are inadmissible.

The BCBP is not tolerant of people who try to cover up their past or deceive the inspector about their criminal record or prior refusals.

Such a person is not only sent back to Canada, he may be charged with an Immigration law violation for attempted entry by fraud or misrepresentation.

The BCBP can add to that by deporting the person, without the right to a judicial proceeding, in a procedure called “expedited removal.”

Although the applicant can seek a waiver for all of one’s problems at the same time (prior criminal violations and INS violations), the recency of the fraud/misrepresentation charge and expedited removal will likely lead to a denial of the waiver, even if the criminal charges are old.

There are other potential consequences that one should be aware of, even if they are imposed less frequently.

Changes in the law within the past few years have reduced the number of vehicle seizures.

Still, the officer would also have the authority to seize the vehicle you entered in, regardless or whether you are the owner or the driver, because it was used in the course of committing an Immigration law violation.

Worse yet, if you are a passenger, the driver can be charged with the immigration violation of smuggling, if the inspector believes that the driver was knowingly participating in your illegal attempt to enter the U.S.

Many inspectors at the border try to intimidate people by threatening them with detention or jail. In reality, the law does not allow that for mere problems with admissibility due to criminal records or immigration law violations.

That brings us to the person who is inadmissible, but who has a pardon.

We strongly object to the concept that “you can’t get caught if you just deny you have a criminal record.”

Our objection goes beyond the basic legal issues and even beyond the moral issues of what is right and wrong.

There is a very practical problem associated with making untrue statements with the intention of deceiving the immigration officer. The person faces all the consequences that can flow from making false statements, including a charge of fraud/misrepresentation, expedited removal and a much more difficult route toward obtaining waiver approval.

One would think that the person who is admissible to the United States poses the lowest risk of any consequences.

While that may seem like common sense, our experience has shown otherwise.

We have encountered many individuals who are admissible to the United States, but who have been refused entry, or worse.

Sometimes people have criminal records that do not affect admissibility.

However, the inspections officer may not be able to determine the full extent of the prior criminal history, and will refuse entry to that person until they can prove the exact nature of the convictions, in order to prove admissibility.

Worse problems occur when the person is not forthcoming with the true facts about his background.

Sometimes the admissible person has a pardon and isn’t sure if the inspector will know about his record.

The person may not realize that the truth can’t hurt him – that his criminal record does not pose a problem.

This highlights the folly of trying to outguess the inspector under the myth that “you can’t get caught” if you just deny you have a record.

We have seen several cases where people were denied entry and charged with fraud/misrepresentation because they lied about their criminal record even though the truth would have allowed them admission.

Some people receive the foolish advice that their Canadian pardon is all they need.

But we have demonstrated that there can never be a guarantee that a person will not “get caught.”

Waiver applications have a very high approval rate, and they are now valid for up to five years.

The driver must ask if it is really worth the risk of being refused entry at the very least, or potentially being barred from the United States for several years.

If the person’s livelihood relies on driving international routes, the risk would hardly seem worth it.

The carrier would also have to question how it could justify placing its driver in the position of suffering those consequences.

By making the waiver application, the driver is admitting the facts of his inadmissibility, facts that may not have been previously known by the BCBP.

Furthermore, the application, by its nature, puts the BCBP on notice of the inadmissibility; meaning that the driver will not be able to enter the United States until the application is approved.

At one time, the former INS routinely issued temporary “parole” papers to allow a driver to continue his job while the waiver application was pending.

Although we have heard unconfirmed rumors that parole is available for waiver applicants at B.C. border crossings, the general rule is that parole is not available, and the waiver applicant must remain outside of the United States until the application is approved.

Processing times vary significantly, and can run from as little as two or three months to six or eight months, or more.

This unfortunate aspect of the application process creates an unhappy dilemma: Do I risk the chances of getting caught at the border, or do I put myself out of commission voluntarily for several months?

It would seem that the most prudent approach would be to “bite the bullet” and choose the latter alternative.

At least then you have control over the timing and you can try to arrange for alternate work assignments while the application is pending.

It is much harder (and potentially impossible if you acquired new immigration law violations) to arrange for that when you are suddenly put out of commission involuntarily if you take the risk and lose.

Daniel Joyce is a U.S. lawyer with expertise in immigration law. He can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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