This article came from the Toronto Globe and Mail Saturday, March 14, 1998
"U.S. border crackdown keeping Canadians out"
Some Barred 5 years or fined on the spotBy Sean Fine The Globe and Mail
James Horner, a 39 year-old Torontonian acepted into a chiropractic school in San Jose, Calif., packed up his minivan and headed for the Sarnia - Port huron border crossing last October. He never made it though.. A U.S. immigration inspectordid n ot believe his story and judged his documents from the Palmer College of Chiropractic West insuffcient. "They held me for five hours, repeatedly saying, "You're a goddamn liar, you're a goddamn liar" It was as if they where trying to behave like television cops."
Then Mr. Horner was banned for five years from the United States, with no right of appeal. His story is not unique. At the world's longest undefended border, Canadians are running into a new barrier set up by Congress, Under a tough new law that took effect last April, Immigration inspectors must impose a five year ban on people they judge to be misrepresenting the reasons for their visit.
Hundreds of Canadians have been subject to the ban. At the Buffalo border crossing alone, 300 people, of whom probly 100 are Canadian citizens, were ordered banned between April and October, according to Winston Barrus, deputy director of the Buffalo
district Immigration and Naturalization Service. (In all, 23,064 people were hit with the five year ban in its first six months, most at the Mexican border.)
But if Canadians are getting into trouble as perceived liars, they also appear to be encouuntering some problems for telling the truth. At preflight inspections by U.S. officials in Calgary, some Canadians are being asked
weather they have ever used marjuana - and if they say yes, they are barred indefinitely from the United States, according to Calgary lawyer Michael
Greene.
This week Mr. Greene, who specializes in immigration, whas called by a 25 year-old woman who said she was barred after admitting to having tried marijuana when she was 19. In another case, U.S. immigration officials alleging to have found what Mr. Greene calls a "crumb" of marijuana in the cap of a 30-year-old Canadian
student told the man that if he paided them $500 cash and signed a document admitting to lying to the border officials, he would not face a fine of $5,000 for attempted drug smuggling. A customs official escorted the Canadian though the airport concourse to a bank machine where he withdrew the cash then to a currency-exchange counter so it could be converted into U.S. dollars, Mr Greene said (The student is now barred indefinitely from the United States.)
Kevin Cummings, program manager for the U.S. Customs Service's passenger
operations, said his country's authorities do not want people bringing drugs with them. Speaking in general about such incidents, he said" "They want to ensure that once he walks out the door, he doesn't just go away. He's attempted to make entry to the United States. He's not free to go".
And if he refused to sign the document? "They would probably have turned him over to the Canadians and let the Canadians criminally prosecute him, I assume. I don't know what the alternatives would be."
Sean Rowan, a spokesman for the Canadian Foreign Affairs Department was unequivocal about U.S. powers for detentions in Canadian airports: There are none. "The American preclearance officals do not have the right to detain anybody at a Canadian airport. No detetion is allowed.
"Canadians get hard time at U.S. border"
"It's amazing. It makes my hair rise," sair Mr. Greene, whi is national secretary of the Canadian Bar Association's immigration and citizenship section. "Tbere's no way our police could ever pull this off. Out customs people could never pull it off. If Canadians were doing this to Americans, we'd probly have an international incident on our hands."
How widespread are these incidents? Michael Davis, an immigration lawyer in Minneapolis who often handles Canadian matters (Mr. Greene refers people to him), said he has heard of several such episodes, but only from Calgary. "Under the zeron-tolerance laws, let's say they find a microscopic speck of something The goverment believes thats enough to exclude somebody."
Mr. Greene said that in the past few weeks he has recieved several calls from individuals who said they have been barred from the United States for amitting to past marijuana use. Suspicion was aroused by a drug-sniffing dog employed by Americans, by the traveller's appearance or by information in computer records. A 44 year-old Calgary businessman who owns a film and television production company, said in an interview that a drug-sniffing dog singled him out on Jan 6. 1997, Under
questioning he admitted to having smoked marijuana while in school decades earlier and was told he was barred indefintely.
The U.S. officals have him a form to fill out if he wishes to gain entry. It requires a letter from the RCMP that he has no criminal record; for that he must have hs fingerprints taken. Also he must answer wheather he or any members of his family have ever been members of the Comminist Party, he said.
"It's just wild, Remnants of the fifties McCarthyism are still around." (He did not want his name used because he was afraid the publicity would hurt his chances for permission to enter the United States.) The five-year ban part of the "expedited removal provisions of the illegal Immigration Reform and Immigration Responsibility Act of 1996, was designed to stem illegal immigration, especially from Mexico. Before it took effect, people barred from the contry by border officals could obtain a hearing before a judge. But
immigration officals could do little about people who lied to them or presented false documents, said Russ Bergeron, a spokesman for the Immigration and
Naturalization Service in Washington.
The officals had two options. They could place the individuals in formal
deportation proceedings, but those would last four to six months and would mean detaining tens of thousands of people each year; or they could allow the
individuals to withdraw there applications and go home. But those people could simply try another border crossing until they succeeded, he said "There was no punitive or deterrence factor."
Although appears to the courts now are not allowed, "There is a review process," Mr. Bergeron said. An initial inspector flags concerns for a second inspector, who interview the subject and decides whether to impose the ban. That decision is reviewed by a supervisor. But critics say low-level immigration officals act as prosecutor, court reporter, ad judge, that questioning occurs without a meaningful chance to respond to allegations, and that the punishment is too strong for the crime. Those held several hours without food or access to a washroom, and there is no right to see a lawyer, family or friends, says the American Immigration Law Foundation in Washington.
The foundation is challening the law in Federal District Court on behalf of 18 U.S. aliens, including four Canadian citizens. One of the Canadians Steven Williamson of Oakville, Ont., said that when he wrote in an affidavit that he had bee denied counsel, an immigration officer ripped the paper threw it at him, began swearing, took off his jacket and touched his gun. Mr Williamson said he became afraid and decided to be more compliant. He was barred for five years allegedly misrepresenting his reason for entering the United States. "From our prespective it's killing a fly with a cannon," Joel Guberman, a Toronto lawyer who specializes in U.S. immigration said of the five-year penalty.
He travelled to Washington last month to press the U.S. goverment for changes to the law. Although no appeals to courts are possible, Mr. Guberman managed to persuade a group of officals monitoring the expedition removal to overturn the five-year ban on Mr. Horner, the prespective chiropractic student. In October, while waiting to reveive his student visa, Mr. Horner headed south hoping to find lodging and visit relatives, he said. His plan was to spend a month, then return to Canada and pick up his visa. But a U.S. immigration offical accused him of having no intention of studying. She said his minivan was packed so full he must be planning to setup a life in the United States.
"There were other inspectors coming by and applauding her, saying, "Good work, Marianne," Mr. Horner said. "At one point she yelled across the room to one of the other inspectors, "I've got one." They were sort of clapping each other on the back."
In one case cited by mr. Guberman to the U.S. goverment, a Canadian employee of a large U.S. subsidiary in Canada was travelling to the United States to train workers and visit friends. She old border officals only that she was visiting friends, and did not mention the business purpose until she was questioned further. She was then barred for five years. "Business people are fond of the little white lie. "I'm just going down for the weekened. They want to avoid scrutiny. It's almost a cultural icon for Canadians," Mr. Guberman said. But he asked, "Should a misrepresentation bar an individual when the truth would not?"
The Canadian goverment has decided not to oppose the five-year ban, even though the law does not provide for judicial review, because Canadian immigration authorities themselves can issue exclusion orders from which there is no right of review, according to a press spokesman at the Canadian embassy in Washington. (In some circumstances they can bar people for a year - for instance, if a person shows up without a required visa and insists on being allowed in, the spokesman said.)
"One of the great misconceptions for the public is that lying at a border where we cross regularly back and forth has no consequences," the embassy spokesman said. "We are trying to remind people when you talk to a border offical, the best thing you can do is tell the truth.
"Passport not enough for officals"
Neil Shearra, 31, a mariner from Vancouver, was on his way to Hawaii for
sailing business last August. his flight was leaving from the Seattle-Tacoma International Airport. A border offical at the Peace Arch truck crossing told him that his passport and driver's license weren't enough - he needed rent receipts or utility bills to show up-to-date proof of his Canadian address. He tried another nearby border crossing where he explained what happened. An offical said to wait for the shift change and he might have better luck.
Instead, Mr Shearar tried a third crossing. He was asked if he had ever been refused entry to the United States, He said no - believing, he said, that the question referred to occasions before that day.
He was then locked in a cell for about two hours, he said. He was released so he could talk with another inspector. This inspector asked him questions and wrote down his answers on a document. "This is your only chance to defend yourself and present your case," Mr Shearar said. But he was not asked to tell his story; rather he was asked questions intended to trap him, he said.
"I said to the guy halfway though, "listen this feels like coercion" He asked to see a lawyer or consular offical and was told he could not. Mr Shearar asked what would happen if he refused to sign the document reporting that he lied. "We'll detain you indefintely," he quited the offical as saying.
He signed. "It's the one time in my life I said "Wow, I'm faced with something that's a lot bigger than and a whole lot stronger then me." It's given me a pretty scary view of what America is."
"Calgary student banned from U.S. indefintely"
A 30-year-old Canadian says he was escored by a U.S. customs official to a bank machine on the concourse of the Calgary airport while his girlfriend was being detaninted by a U.S. customs officer for what he believed was a possible
strip-search.
All this happened on Feb. 11 when a political science student at the university of Calgary attempted to fly to Miami, where he says he planned to ask his girlfriend to marry him. But a senior U.S. official, after looking into the case, said the student is not being entirely truthful. Kevin Cummings, a U.S. Customs Service spokesman, said a drug-sniffing dog sat down beside the student, indicating that he might be carrying drugs. No strip-search was planned for the woman, he said, because there was no reason to think she had drugs. He also said the man lied to
immigration officers before being checked by customs officers.
As the student tells it, immigration officials stopped him, apparently after running his name though their computer (he says he has no criminal record), and sent him on to custom officials, who searched his bag. They pulled out his baseball cap, drew a "speck" from the rim and put it in a bag containing a jelly-like substance. After shaking the bag for five minutes an officer said the speck turned blue which meant it was a controlled substance.
"Do you know what zero tolerance means?" the student, a Canadian citizen quoted a customs officer as saying. (He did not want his name used saying that he is active in local politics and charity work and that the publicity might be harmful.) The student said a U.S. customs offical strip searched him (no body cavities) in the presence of a Canadian border offical, but did not find
anything. Mr Cummings insisted that only Canadian officals conduct the strip-searches, and only in accordance with Canadian law. A U.S. offical told the student he faced a fine of $5,000 for taking a controlled substance into the United States, but that if he paid $500 immedately and signed some papers he could go. "Otherwise, the implications was that I can't - that neither of us can."
Escorted though the airport con-course to a bank machine, he withdrew money, then went on to a curency-exchange window. The papers to be signed said he lied to U.S. officals when we told them he had no narcotics on him. He objected to that but said he feared that if he did not sign his girlfriend would be strip searched. The student, who says his mother is a U.S. citizen born in Davenport, Iowa is now banned from the United States indefintely. He has
applied for a waiver allowing him entry. Mr Cummings said his file did not indicate wheather the man was taken out to the con-course to a bank machine. He said that where a drug seizure is made, "we would ask the Canadians [athorities] if they want to prosecute criminally, If the Canadians decline, we will levy an admininstrative penalty." (No matter how small the amount of the drug, posession is still a criminal offence under Canadian law, he noted.)
He said he could not diviluge specific details about the mans case under U.S. privacy law, but he believed from a reporter's description) without the name) that has was talking about the same case. The customs service has guidelines for its officials in these cases but does not make them public Mr. Cummings said.