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Legalities aren’t your only worry at the border

I often write about the legalities and practicalities of entering the U.S. And by legality, I mean the laws, rules and regulations governing the situation. But practicalities are more elusive, and may...

Daniel Joyce
Daniel Joyce

I often write about the legalities and practicalities of entering the U.S. And by legality, I mean the laws, rules and regulations governing the situation. But practicalities are more elusive, and may relate to things such as interpretations of the meaning or intent of laws; the mood or personality of individuals; or the validity of conclusions drawn from a set of circumstances.

Consider the following:

I received a call from a Canadian driver who told me that he had been refused entry to the U.S. the previous week. The individual had been born overseas and was a landed immigrant in Canada. He told me that he didn’t have a criminal record – but had a recent arrest – and said he did not think it was proper for the Immigration Service to refuse him entry when there was no conviction.

He also offered his opinion that the case had no merit and that it would be dismissed at the trial. But it was one that would make him inadmissible if convicted.

I went straight to the legalities. The law was quite clear about inadmissibility, and the law states that convictions – not arrests – make someone inadmissible. There are possible exceptions for narcotics violations or terrorist activities.

But the INS could not refuse him entry on the grounds of a criminal record when he didn’t have one, and I told him he should try to find out the reason for the refusal. Again, this is tied to legalities, because the INS usually issues a document to a person who is turned back at the border. It states the grounds of inadmissibility by referring to a specific section of immigration law.

The driver said that he didn’t have the document.

He called me back a couple of weeks later to tell me that he returned to the border, and that the INS inspector told him there was a concern about his ability to leave Canada.

A Canadian criminal court can place restrictions on a defendant awaiting trial. The standard form used by the Crown has a list of conditions that can be attached, including travel restrictions and the surrender of a passport. The INS inspector may have had a legitimate reason for asking about any restrictions on travel.

But I told the driver that another issue may have come into play. The INS will not admit someone into the U.S. if there is any concern about the ability of that person to return to Canada. It’s the person trying to cross the border who faces the burden of proof, and has to supply supporting documents.

As soon as someone raises the issue of a criminal offence, the INS may not merely take the person’s word as to the nature of the charge. If the charge was potentially a deportable offense for the landed immigrant, the inspector would have reason to ask whether the driver was inadvertently deporting himself, with no right to re-enter Canada.

The INS inspector can call Canadian Immigration on the other side of the bridge and ask if the Canadian government guarantees the return admission of an individual being admitted to the U.S. A “no” is enough to refuse the person admission.

The driver called me about a week later and said that he had been refused entry at a second port of entry. Apparently, he thought he would try a different bridge because he didn’t like the results at the first site.

The approach often results in more problems. The INS inspectors at the second bridge will almost always refuse to deal with the matter, and require the driver to work it out at the same place he had started.

This time, in addition to refusing entry, the inspector at the second bridge issued a written reason for refusing admission, claiming that the individual was attempting to immigrate to the U.S. without proper documentation. In more practical terms, this means that he could not prove that he was merely intending to enter as a visitor. The driver provided me with the refusal document, together with a copy of his Canadian criminal charges. To my surprise, they included two charges that were more serious than the one he initially told me about.

I spoke directly with the INS inspector involved, and asked why the driver was refused admission.

The response surprised me.

“Do you know what he is charged with?” the inspector asked.

At this point, all legalism ended, and the practicality set in.

“We don’t want people like that in our country,” he said. “I don’t care if he is convicted or not. He originally told me about one charge but never told me about the other two until we asked for some documentation. So he lied to me. I have no idea what his intentions are when he comes into the country, so I’m not comfortable letting him in. He has no right to enter the U.S., and he has to show that he is eligible. I made the decision that he wasn’t eligible, and that’s it.”

So there is an example of practicality overcoming legalism. No matter what the reality is, the INS inspector can always make the decision that you haven’t proven that you are just a visitor, and you can be denied entry. n

– Daniel Joyce is a partner in Hirsch and Joyce, Attorneys at Law. He can be reached at 716-564-2727.

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