Canadians kicked out of U.S. now have avenue for appeal: court ruling

A recent U.S. district court ruling is exciting B.C. business advocates because they believe it will provide Canadian travellers with more protections should they run ...

A recent U.S. district court ruling is exciting B.C. business advocates because they believe it will provide Canadian travellers with more protections should they run afoul of expedited-removal laws.

Under the laws, Canadian citizens trying to enter the United States can be barred from the country for five years or more, on the discretion of individual border guards.

The January 9 case involved John Smith, a retired Canadian businessman who regularly travelled to Arizona to skydive and take photographs. He was detained at a border crossing in 2009. Border guards determined that Smith intended to work in the U.S. after they found $25,000 in undeclared cash in his motor home and flyers advertising his photography services.

The ninth circuit district court ruled that Smith could not prove he did not intend to work in the United States. However, the court recognized that an exemption does exist for Canadians seeking to enter the U.S. for business or tourism purposes that do not require them to carry documentation.

“The court leaves open the question whether a Canadian citizen who has a bona fide or non-frivolous claim to being a visitor can lawfully be subject to an expedited removal order,” said Greg Boos, a lawyer with Cascadia Cross Border Law in Bellingham, Washington. 

The ruling is significant, said Boos, because previous cases had suggested that federal courts had no jurisdiction to consider whether U.S. Customs and Border Protection exceeded its authority in issuing an expedited removal order.

“This is great news for B.C.’s cross-border business community,” said BC Chamber of Commerce CEO John Winter. This decision lessens border stress for business people and tourists and promotes cross-border trade.”

The BC Chamber of Commerce participated in the case by filing an amicus brief together with the Bellingham/Whatcom Chamber of Commerce, the Northwest Economic Council and the Pacific Corridor Enterprise Council.

On December 30, U.S. customs cancelled an expedited removal order that had been issued to Chad Rook, a B.C.-based actor who had attempted to cross the border one year ago in order to seek acting work in Los Angeles. That order had banned Rook from the U.S. for five years.

“We trust these two decisions will make U.S. border services use the expedited removal process more judiciously,” Winter said. “And if errors are made, B.C. business people can take comfort that they have legal recourse.”

jstdenis@biv.com

@jenstden

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