CROSS BORDER LAW: Many Canadians hold misconceptions about crossing the American Border

Each year, hundreds of thousands of Canadians travel to the United States for work, vacation and shopping. Some believe they are not subject to U.S. immigration law due to the friendly relationship between the two countries. However,Canadians, like other foreign nationals, are subject to U.S. immigration law and need work permits, waivers, and green cards to enter the U.S. While many Canadians cross the border with little difficulty, several misconceptions still exist:

1) “Why am I being refused admission at the border? My criminal record is over 20 years old.” The Immigration and Nationality Act (“INA”) contains several criminal-related provisions related to admission to the U.S. Specifically, one provision of the INA renders foreign nationals inadmissible if they are convicted of a crime involving moral turpitude (“CIMT”), regardless of the date of conviction. A CIMT generally refers to conduct that is contrary to the accepted rules of society. In addition, a foreign national is inadmissible to the U.S. if he attempts, conspires or violates any controlled-substance law of the U.S. or any foreign country. The most common CIMTs for Canadians are possession of marijuana, possession of stolen property, fraud and theft over $1,000. If a Canadian has been convicted of a CIMT, he must obtain a nonimmigrant waiver from Customs & Border Protection (“CBP”). Such waivers must be applied for in advance of entry to the U.S. Unlike those from the Canadian immigration system, U.S. waivers generally take six to eight months to obtain. If your client possesses a criminal record or if you are contemplating a plea bargain, you should contact a U.S. immigration lawyer to determine how it will affect his ability to enter the U.S.

2) “I shouldn’t be refused admission to the U.S., my criminal record has been sealed and pardoned by the Canadian government.”The U.S. government does not recognize foreign pardons. Even though a foreign national’s criminal record is sealed and pardoned in Canada, it’s accessible at any port of entry as the CBP database contains information regarding foreign criminal convictions. The database is generally checked when a foreign national attempts admission. If a foreign national’s conviction record is located by CBP, he will need to obtain a nonimmigrant waiver to enter the U.S. Upon applying for a pardon on behalf of your client, you should inform him that the Canadian pardon will not eliminate the conviction for U.S. border-crossing purposes.

3) “I know I’m not supposed to enter the U.S., but I’ll tell the agent I’m going on vacation and try anyway.” Committing fraud or misrepresentation at a U.S. port of entry is a bad idea. In 1997, Congress mandated a procedure for the expedited removal of persons deemed inadmissible at the border based on attempting to enter through material misrepresentation or fraud and/or with a lack of proper immigration documents. An Immigration Inspector can issue an expedited removal order which will ban the foreign national from entering the U.S. for five years.The result is the immediate exclusion or removal of the person from the United States. There is no appeal process or judicial review of an expedited removal order.

4) “I was refused admission at Pearson International Airport. I will just drive to Buffalo and try my luck at the Peace Bridge.” This type of “port shopping” is very risky behavior. Whenever a foreign national is refused admission to the U.S. he is advised by the CBP agent to not seek admission through another port of entry. Many foreign nationals choose to ignore this advice. The agents will know of the prior refusal through their comprehensive computer databases, and can: a) refuse the foreign national again; and/or b) seize his vehicle; and/or c) charge him with material misrepresentation and issue an order of expedited removal. You should always discourage your clients from “port shopping,” as the consequences are severe.

5) “Why would my Canadian attorney need to consult with a U.S. immigration lawyer?” The climate for crossing the border has dramatically changed since the tragic events of September 11, 2001. In 2002, The Department of Homeland Security was created, in part, to increase the security at the U.S. border. As a result, various agencies including Customs and Border Protection, Citizenship and Immigration Services, and Immigration and Customs Enforcement, are charged with strictly enforcing the various regulations of the INA. The procedures for entering the U.S. are very complex and require an intimate knowledge of the laws and current policies. Foreign nationals cannot afford to make a mistake at the U.S. border. A misunderstanding at a port of entry can result in a five year ban from the United States. As such, it is critical for Canadian lawyers to form strategic partnerships with U.S. immigration lawyers to ensure their clients are in compliance with all immigration laws before they attempt to cross the border.

Rosanna Berardi is the principal of the Law Office of Rosanna Berardi, Esq. in Buffalo, New York,
which solely focuses on employment and family-based Immigration Law. She frequently counsels individuals and corporations with respect to cross-border criminal and admissibility issues, as well as work permits and green card petitions.

This article originally appeared in The Lawyers Weekly


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