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Law and the Border: Take a second look at refusals at the border

Not too many things can ruin a driver's day as much as being refused entry to the U.S. when making a delivery. It's bad enough that the load gets delayed, causing distress to the shipper, carrier and...

Daniel Joyce

Daniel Joyce

Not too many things can ruin a driver’s day as much as being refused entry to the U.S. when making a delivery. It’s bad enough that the load gets delayed, causing distress to the shipper, carrier and receiver. Worse yet, the driver faces the sudden possibility of losing his job because of his inability to cross the border.

Sometimes, the refusal merits a second look to determine if it involves a serious problem of inadmissibility, requiring a waiver, or documentary evidence that can clarify an issue and allow the driver to gain admission immediately.

There are countless reasons for refusals of entry, and this article will focus on the commonly encountered situation where a driver is refused because of a criminal record. We have found that the situation usually falls into one of four categories when a driver is refused admission on the basis of an alleged criminal conviction record:

Post 9/11 security measures and enhanced databases have provided U.S. Customs and Border Protection (CBP) with the capability of conducting background checks faster and more thoroughly, leading to more findings of inadmissibility. The fact that the person was never refused admission before is of no more a defense than the person who tries to escape a speeding ticket on the grounds that he always exceeds the speed limit but was never caught before.

Additional information is required: This is a difficult category, because the CBP inspector rarely provides enough insight into the issue to determine the basis for the refusal.

Information in the Immigration database may alert the CBP inspector to the existence of a conviction record or prior criminal offense, without enough information to determine admissibility.

Some convictions make a person inadmissible, and some don’t.

The information available to the inspector may not be sufficient to review the matter fully. Since CBP does not give the individual the benefit of the doubt, the inspector may simply say: “You are inadmissible and need a waiver,” instead of saying: “I can’t tell for sure what your conviction record is. Please come back with complete information so we can take a better look at this.”

It is quite common for someone to be refused entry on the basis of a criminal conviction record, only to discover upon complete review that the record does not make the person inadmissible. The person can return to the border, present the complete documentation, and be admitted if it is found to be favourable.

A legal determination is required: We have also seen numerous cases where the person has been told that he is admissible by one CBP inspector at one port of entry, only to be told by a second officer that he is inadmissible and needs a waiver. Who is correct?

Unfortunately, although some types of criminal offenses are well established to be either problematic or not, there are some offenses that have received inconsistent treatment at different ports of entry. In the absence of a decision by a court or CBP headquarters that is binding on all ports of entry, some questions have been left to the legal staff of the local CBP Office.

While it is possible to request an opinion from the local CBP Office or from CBP headquarters in Washington, it is usually more efficient to make the request in the context of a waiver application by preparing and filing the application with the request to review and determine admissibility.

If the person is found to be admissible, the CBP will issue a letter to that effect, and if inadmissible, the CBP can approve the waiver application. Unfortunately, this problem is a serious disadvantage to the driver, who may have to remain outside of the United States during the many months that it takes to obtain a final decision.

The person is admissible: Sometimes the CBP Officer is being overcautious and merely needs some simple evidence to show that the person is admissible.

For example, the CBP database may show that a person was arrested and fingerprinted, with no record of the disposition.

The driver would merely have to bring back the court records to show that the case was dismissed, with no conviction, meaning that the person is fully admissible.

When faced with a refusal at the border, don’t panic. It may not be as bad as you think, and there may be a way of going back to resolve the problem without the necessity of a waiver.

– 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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