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Law and The Border: FAST card is not guaranteed

In 2002, the Canada and U.S. governments rolled out the Free and Secure Trade (FAST) commercial driver program....

In 2002, the Canada and U.S. governments rolled out the Free and Secure Trade (FAST) commercial driver program.

Through an application process with both Citizenship and Immigration Canada (CIC) and the U.S. Department of Homeland Security (DHS), drivers are pre-screened for eligibility to use the FAST-dedicated lanes between Canada and the U.S., with streamlined Customs and Immigration processing. The FAST card also allows drivers to transport eligible goods for FAST-approved carriers and importers.

It is becoming increasingly a disadvantage for drivers to be refused a FAST card. One may wonder how a driver can be eligible to enter the U.S. freely in a non-FAST lane, but be denied a FAST card. The answer is that the FAST card is a privilege that goes beyond mere admissibility issues to the U.S. In some cases, the CIC or DHS will determine that the privilege is not justified, even if the person can still legally cross the border.

By refusing the FAST card, the DHS puts the driver in a position where he can be more easily questioned or monitored during each entry. The most common reasons for FAST card refusal are:

* providing false or incomplete information on the FAST application form;

* conviction of a criminal offence;

* violation of Customs or Immigration laws;

The first reason, providing false or incomplete information, almost always relates to the answers to questions on the FAST application relating to prior criminal offences or Customs/Immigration violations. It is a shame to see drivers penalized for the failure to disclose information that may already be known to the CIC or DHS.

To make matters worse, the information withheld is often information that is not incriminating. In other words, disclosure of the information may not have adversely affected the application.

However, the failure to answer questions truthfully is a separate immigration violation.

It is foolish to withhold information regarding an old criminal offence or immigration violation on the hope that the CIC or DHS will either not know it, or not discover it during its own background review.

The rules regarding criminal convictions appear to be different for FAST card applications than for general admissibility to the U.S.

The FAST application asks: “Have you ever been convicted of an offence in any country for which you have not received a pardon?”

The interplay between convictions and pardons is interesting because a pardon has no effect on legal admissibility to the U.S. Some criminal conviction records make a person inadmissible to the U.S. without a U.S. immigration waiver, and others do not.

The absence or presence of a pardon is irrelevant.

However, it appears that a pardon is a relevant issue in a FAST card application, even for minor offences that do not affect admissibility.

That means there are some drivers who remain fully admissible to the U.S, without needing waivers, but who cannot get a FAST card unless they also obtain Canadian pardons.

We have not been able to compile sufficient data to explain why some people without pardons are granted FAST cards, and others are not.

We also are not aware of any written guidelines on this point to instruct applicants.

It appears that the best approach is to apply for a pardon in all cases, to reduce the likelihood of a FAST denial, regardless of the nature of the criminal record and regardless of any determination of legal admissibility to the U.S. for non-FAST purposes.

Prior Customs or immigration law violations can also affect the FAST card application.

A driver that has violated Customs laws or regulations relating to the entry and clearance of goods could be refused a FAST card.

Apart from making false statements on a FAST application or in connection with any previous entry to the U.S., the most common immigration law violation is that of “cabotage” or interstating violations.

Although previous cabotage violations may not affect the admissibility of the driver, it can affect FAST card eligibility. In fact, a cabotage violation is a ground for revocation of a FAST card after issuance.

There is no appeal process for a FAST card denial, but the applicant is allowed to make an inquiry about the denial, and apply again if the problem can be fixed or explained. Unfortunately, FAST card denials can be very vague as to the reasons for the decision, and the applicant may have to go through the lengthy and often unsatisfactory “Freedom of Information Act” process with U.S. Customs and Border Protection to determine the underlying reason for the denial.

– 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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