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U.S. court ruling may help curb unfair border bans

The power of U.S. border guards to ban Canadians from entry for five years or longer may now be restricted as a result of a U.S. court ruling. - Dan Ferguson / Black Press
The power of U.S. border guards to ban Canadians from entry for five years or longer may now be restricted as a result of a U.S. court ruling.
— image credit: Dan Ferguson / Black Press

The B.C. Chamber of Commerce has won a partial legal victory in its fight against five-year bans on entering the U.S. that are sometimes arbitrarily imposed on Canadian visitors.

The business group, along with Whatcom County allies, had challenged "expedited removals" that can be slapped on Canadians who U.S. border agents decide lied to them or intended to work in the U.S. illegally.

Critics say the bans on entry for five years and longer have often been applied unfairly, with no justification and virtually no chance of reversal.

Bellingham lawyer Greg Boos, who spearheaded the court action, argued U.S. Customs and Border Protection (CBP) agents ignored a legal exemption indicating expedited removals are not to apply to Canadians in certain circumstances.

The Jan. 9 ruling of the U.S. ninth circuit court of appeals agreed, although Boos said it remains to be seen how the exemption will be applied in practice.

"This is the first case ever recognizing that there is an exception to the expedited removal rules for Canadians," Boos said. "This is going to ratchet down the number of expedited removals against Canadians."

He expects some bans will continue to be imposed and border policy won't change overnight.

"CBP is like a huge battleship – getting it to change course is a difficult thing to do."

The ruling is unlikely to help anyone who misrepresented themselves to U.S. authorities, he said.

But it should offer an avenue for appeal to someone who didn't lie to agents but was banned anyway – perhaps because a search of their vehicle turned up resumes and an expedited removal was issued on the assumption they intended to work illegally.

Some B.C. residents previously banned from entry may be able to use the ruling to press for a reversal, Boos said.

He said expedited removals are also sometimes wielded by CBP agents as a threat, adding B.C. residents who arouse suspicion often report being told "I could have had you banned forever."

The court refused to take action in B.C. resident John Smith's case, on which the challenge was based.

He was banned from entry in 2009 after trying to cross the border south of Osoyoos to go skydiving in Arizona.

U.S. officers searched Smith's motor home and found flyers advertising his photography work, as well as a nine cartons of cigarettes and nearly $34,000 in cash – more than he had disclosed.

Boos said expedited removals have had a "chilling effect" on legitimate temporary travel into the U.S.

B.C. television actor Chad Rook was banned from entering the U.S. a year ago and Boos said the new ruling would have been very helpful had his ban not been rescinded in late December.

Rook was going to California to seek job offers and CBP agents banned him even though he was going through proper channels to get a work visa.

The B.C. Chamber of Commerce feared disruption to cross-border trade if managers or key employees were banned from entering the U.S.

"This is great news," B.C. chamber president John Winter said, adding he's "very encouraged" but wary as to how any changes unfold or whether the ruling may be appealed.

Winter said some B.C. firms found their service staff were slapped with five-year entry bans when they were dispatched to the U.S. to service equipment that had been sold to U.S. customers.

"It's been getting in the way of commercial activity," he said. "This is an unprecedented level of power that's wielded and it's certainly not one that exists for Americans heading northbound."

Winter said the Canada-U.S. Beyond the Border dialogue offers a venue where top Canadian officials should press their American counterparts to exempt Canadian business community members from the expedited removal rules.

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