Regional chambers say that the practice of "expedited removal" hurts cross-border business

Published on Wed, Oct 16, 2013 by Ian Ferguson

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For Canadian residents wanting to visit the U.S., the threat of “expedited removal” – an on-the-spot decision by a border agent to ban someone from the U.S. for five years or more – is a major deterrent to doing business in America. 

At least that’s the opinion expressed in a court brief filed in an appealed expedited removal case, and local business groups have expressed their agreement. The Bellingham Whatcom Chamber of Commerce and Industry joined several regional economic groups in challenging the U.S. government’s use of expedited removal.

The legal challenge pending in the Ninth Circuit Court of Appeals states that the border security measure, designed to regulate foreign nationals seeking immigration to the U.S. has been wrongfully applied to Canadians intending only to visit. Local business groups have filed an “amicus curiae” or “friend of the court” brief supporting the challenge.

Due to the government shutdown, Customs and Border Patrol (CBP) representatives were unavailable for comment, but annual reports from the U.S. Office of Immigration Statistics reveal expedited removals of Canadian nationals make up a tiny fraction of total alien removals from the U.S.

Despite the low numbers, Bill Gorman, interim director of the Bellingham Whatcom chamber, said expedited removal has had a “dampening effect” on cross-border travel in Whatcom County.

“Even though the numbers are low, the anecdotal accounts of people trying to visit the U.S. and getting banned for years has a far-reaching psychological and sociological effect,” Gorman said. “It creates a sense of fear for Canadians at the border.”

Gorman said while he understands federal agents need to be able to enforce laws that protect the border, the ability for agents to make an on-the-spot decision to ban someone from the country – and the fact that the decision can’t be reviewed in court – can have broad consequences when it is misapplied.

Canadian media has publicized several cases in which misunderstandings at the border led to a five-year ban. North Vancouver resident Leah Shaffer sold his vacation home in Point Roberts after he was accused of living at the cottage and banned from the U.S. by a CBP agent, even though Shaffer provided documentation of his residence and employment in Vancouver. Pearl Fabbro from Maple Ridge, B.C. was banned when CBP agents found dog-breeding equipment in her car, even though she claimed she bred dogs as a hobby and wasn’t crossing the border for work purposes. Other cases have been reported in newspapers from Abbotsford to Vancouver.

The case being challenged in the Ninth Circuit Court of Appeals involves John Smith, a Canadian cameraman and skydiver who told CBP agents he was traveling to Arizona for a training trip. Smith told border officials he only had $8,000 with him, but a search of Smith’s R.V. revealed $25,000 in cash and traveler’s checks, along with nine cartons of cigarettes and flyers advertising his photography work. 

According to court documents, the flyers stated Smith was available for a five-month period from “Tucson to Phoenix and all points in between,” specializing in “skydiving, motorcycle events, aircrafts, and nudes.”

Smith was declared inadmissible and banned on the basis that he was an immigrant without documentation who intended to work in the U.S.

Banned foreigners can appeal their expedited removal, but CBP handles appeals internally. Scott Railton, an immigration attorney for Cascadia Cross-Border Law in Bellingham, said he and many others would prefer to see an avenue for judicial review. 

“If you’re in the U.S. you can get your case in front of a court, but expedited removal leaves the decision up to the border agent and his or her supervisor with no avenue for a court to review the order,” Railton said. “So there’s a fundamental matter of unfairness that has a chilling effect on cross-border commerce.”

Railton works with immigration attorney Greg Boos, who co-authored the amicus curiae but was unavailable for comment.

In filing the court brief, the Bellingham Whatcom chamber was joined by the B.C. Chamber of Commerce, the Northwest Economic Council and the Pacific Corridor Enterprise Council, all non-profit organizations with an interest in promoting the flow of people and goods across the U.S./Canada border.

“We have a long history of commerce and easy travel across our shared border,” Gorman said. “Canadian business has a huge impact throughout the I-5 corridor, and it’s always been an important part of our economy here in Whatcom County. It helped us weather the recession, but the numbers of people crossing the border still aren’t where they were before 9/11.”

Statistics presented in the amicus curiae and compiled by Dr. Hart Hodges, director of Western Washington University’s Center for Economic and Business Research, show that southbound crossings of the U.S./Canada border have not recovered since 9/11.

Southbound crossings reached almost two million in the fourth quarter of 1990 and were consistently above one million per quarter until 2001. From the fourth quarter of 2001 until the first quarter of 2011 when the data ends, southbound crossings averaged below 600,000 per quarter.