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Law and the Border: Don’t play games with FAST card application

There is a little game that has been going on for as long as there have been border inspections. A person has a potential problem regarding admissibility to the United States - an arrest, a conviction...

There is a little game that has been going on for as long as there have been border inspections. A person has a potential problem regarding admissibility to the United States – an arrest, a conviction or a previous immigration law violation. The questions in his mind are: “Do they know about this? Will they ask me about it? Should I admit it?” Thus begins the game, and the person tries to see if he can gain admission to the US without having to admit or disclose a potential problem.

Our advice has been consistently the same over the years. You need to know the legal issues and understand the consequences before you reach the border, and at the border you need to tell the truth when asked specific questions about your background.

Sometimes an arrest or criminal conviction has no bearing on admissibility, and the truth does not hurt. In other cases, a person needs to obtain a waiver. But playing games is foolish, because you not only run the risk of refusal of entry, you also will gain another adverse mark against you for being untruthful.

How is this game played in the FAST card application context? The FAST card application is quite simple, but it does ask “Have you ever been convicted of an offence in any country for which you have not received a pardon?”

Again, those same questions arise: Do they know about my problem? Is it in the system? Should I just check the “no” box and see what happens? A recent example came to my attention that shows the folly of that mindset.

An individual had a conviction for a minor problem, so minor that he was not even sure if it was in any criminal record database. If he checked the “no” box, and the record of conviction was not in the system, no one would ever know. If he checked “no” and they did know about it, he assumed he could apologize for his poor memory and explain it away.

On the other hand, if he checked the “yes” box, he would have to attach all sorts of records to show how the case was disposed of. Worse yet, he feared that a “yes” answer would automatically lead to a denial. He did not consult an attorney, decided to check the “no” box, and took his chances.

Soon thereafter, he received correspondence stating that his FAST card was denied. The reason for the denial was ambiguous and not helpful, merely stating that he was found to be ineligible. The denial letter stated that he had the right to request information from the Department of Homeland Security (DHS) under the Freedom of Information Act (FOIA) process.

This is an interesting and often unforeseen part of the “game.” Applicants seem to think that this is like a card game, where after the applicant lays down his cards, the DHS has to lay down its cards as well. But that doesn’t happen. The DHS does not reveal what information it has or doesn’t have, and the applicant in this case did not know if the denial was because of the previous violation, or some other reason, or if it was a mistake.

The only option is to reapply, but what box do you check on the subsequent application? A “yes” will only point to the fact that the first application was incorrect, while a “no” compounds the problem if the DHS knows the truth. So the applicant waited for the FOIA information, wasting approximately one year. Finally, the information arrived, which showed that DHS did know about the minor criminal conviction.

So he reapplied, this time checking the “yes” box and disclosing the conviction with an explanation. To his surprise, his application was denied again. He requested an explanation and received another somewhat ambiguous response stating that there were two problems, a criminal conviction in the past and an immigration law violation.

It was only at this point that the applicant contacted our office to help sort out the mess. I asked him if there had been any refusal of entry or any immigration law violation in the past, and he said there was none. But a review of his documents made it clear to me that there was indeed an immigration law violation.

The applicant committed an immigration law violation by not telling the truth when he checked the “no” box on his first FAST application.

He is now in the process of submitting yet another application, explaining both the original criminal conviction and his reasons for checking the “no” box on the first application. It has been over three years since he started the process, and still does not have a FAST card.

Was the game worth it for him? The terrible irony of the whole ordeal is that the criminal conviction is not something that would have affected admissibility to the United States, and probably would not have interfered with a FAST card approval. But by playing the game wrong, the applicant only added to his problems. He has two marks against him instead of one, he lost at least three years of time without being able to use the FAST lane, and still has no assurance that FAST privileges will come to him any time soon.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.

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