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Law and the Border: FAST cards are 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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6 Comments » for Law and the Border: FAST cards are not guaranteed
  1. rupinder says:

    hi,
    i m a fast card holder. actully i have not been using my fast card for long time and i forgot to get my old address, phone number(changed more then 2 years ago) changed and my passport and driving licence were also expired and i got my driving licence renewed but passport is still expired.i didn’t inform at fast card office regarding renewals.
    cut into short, my all document that are registered at fast card office were expired. some of them have already been renewed and some of them are still expired(passport). i knew that all these documents must be got updated at fastcard office but i know it is my fault, i forgot to do so.
    now i checked my fastcard status online. it shows my fast card is expired b/c of expired travel documents(passport ,licence etc.).
    so now i want your advise in this satuation. what should i do. i m afraid that the moment i would inform them that i have been living with different address and phone number for last 2 years,they would immedeatly disqualifie me for renewal.
    i need your help.
    thank

  2. steve says:

    Good Day,
    I am desperately trying to resolve a situation and I’m hoping you can point me in the right direction. In 2006 I retired from the Canadian Forces after serving with pride for a little more than 26 years. I applied for aF.A.S.T . card in 2007 and during the interview with the American Border officials I was asked to disclose any criminal history. I advised them at that time I had been charged in 1983 of a crime, for which I had received a pardon. This was not a crime of moral turpitude, and for all intents and purposes it really was not a serious offence ( I was awarded a sentence of 2 days).Unfortunately this admission was sufficient to terminate the interview and I was sent home. a few weeks later I received a letter from the American F.A.S.T . agency advising me I was being refused for “failure to disclose”. The letter went on to say I was eligible to reapply in 90 days.Approximately 8 months later I reapplied; However, My name has been red flagged and every time I reapply I get refused. Is there anyway I can resolve this issue? I am being refused jobs because I am ineligible to participate in theF.A.S.T . Program. I am somewhat confused with the attitude the Americans are taking. I have trained with many American military units, (USMC, SEALS, 82nd Airborne, Special forces). I have instructed many American military units on cold weather ops, I have stood shoulder to shoulder with the Americans protecting their interests abroad and now all of a sudden I am deemed a “risk”? If i retained an American Lawyer to have my record expunged would this erase my file with the F.A.S.T agency?

  3. Manjinder says:

    Hi There
    I had a fast card issued to me back in the days
    Later on in 2006 it was taken back by the authorities at US Border without letting me know any reason

    I did try to contact the fast card authorities but had no response

    Then later on I reapplied for fast card twice but was being refused stating ineligible

    Now I am a Canadian Citizen and wanna get it if you could please help me out with that

    Thanks

  4. Jason Terry says:

    Applyed for fast card have no record have not recieved a reply back ? are they not to send a letter or notice for what ever reason.

  5. Stephen Thompson says:

    Stephen I have never obtained a fast card. I did apply for a fast card and was denied twice. I am a Canadian from Windsor ON. Who has never been convicted of a crime in any country. I have a passport and I use it on occasion without a problem. I was only turned around at the border once for being wrongfully accused of taking a job from an American. I was taking a group of young hockey players to Kronk Community Centre to workout with boxers. That was the only voluntary trip I attempted to make with the hockey players due their coach having a doctors appointment that day. This act of good intentions has cost me a lot of time and potential money. I believe this incident at the border can be corrected and would appreciate a correction on this error.

  6. Mike says:

    Just wondering if I apply for a fast if it’ll be denied due to having an impaired 4 years ago?

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