Trump Immigration Policies Begin Affecting Canadians Crossing the US Border

Canada and the United States enjoy one of the world’s most unique and enduring bilateral partnerships. Upwards of 400,000 people and $2 billion in goods and services flow across the US-Canadian border each day.  Cooperation at unprecedented levels has helped achieve continental security and economic prosperity for both countries, However, the strongest test to this relationship may lie in the days and months ahead.

Crossing the US Border has changed

While the renegotiation of the North American Free Trade Agreement [NAFTA] may ultimately define the future of this relationship, the first real test appears to be the issue of border security and how Trump’s immigration policies are affecting Canadian citizens.

Each country limits the invasive power of law enforcement and border security agencies on citizens and lawful residents.  Yet, there are virtually no limits when it comes to the rights of non-residents.  In the US, heightened security and enhanced screening measures long pre-dated the new administration in Washington. Yet President Trump’s policies represent a significant departure from his predecessors.   His executive orders on Immigration and border security has led to confusion and chaos at US borders across the nation.

A Canadian citizen can no longer take for granted the ease in which they may have crossed the US border in the past.  This reality best reflects the present day circumstances. Your access to the US, if granted, is on a privilege basis.  You are NOT seeking entry by right and so your conduct and presentation at that US border should always reflect this reality.

Departing Canada means you leave behind a country where your rights are clearly defined.   Gaining admission into the US also means you are protected by similar rights.  In between is the US Port of Entry where legal rights ultimately seem, and in actuality are, suspended.  The legal debate surrounding these rights, or lack thereof, remains contentious and unsettled.

Canadians need to understand the level of authority they are subject to at a US Border.  When seeking into the US, you are subject to examination.  The Border officer examining you has incredible power and authority, and this includes a tremendous amount of broad discretion.  Further, it is clear this examination can now include a line of questioning about a person’s religion, political views, and even attitudes towards President Trump.

Canadian citizens are also subject to a US Border officer’s power to conduct a search of their vehicle and person without a warrant or probable cause.   In fact, US bound travelers are being asked to disclose their social media passwords.  It should be fully expected that cell phones, laptops, and other electronic devices in your possession will be subject to search and possible seizure.  Understand that the content of those devices may speak to matters of religion and political dissidence more so than you ever could upon examination.

While this line of questioning combined with the intrusive powers of search being invoked, one can argue that on the very face of them they appear to be morally or legally objectionable.  Yet this is the reality of the present circumstances.  The real question is, are you prepared to answer these questions or subject yourself to such intrusive search and seizure powers.   Remember, US Border officers are well trained and often are “sizing you up” during an examination.  They are reading you as much as they are listening to what you say.  The perception that you are being evasive and uncooperative will be viewed unfavorably, impacting the decisions and actions they take. It will also affect how they perceive your level of honesty and credibility.

You may decline to answer questions, but consequences may follow

To be clear, you may decline to answer any question that you are not comfortable answering.  if you are strongly convicted to the notion you will not answer questions about religion or politics, you can certainly make those feelings known.  However, understand and be prepared to fully accept the consequences that are likely to follow, and then consider if it is in your best interests to travel to the US at this point in time.  If you are not prepared to answer such questions, know your options before undertaking travel to the US at the time.  Consider your personal beliefs and convictions, and weigh the same against the need or desire to visit the US.  This debate should take place before you decide to seek entry into the US, not after your reach the Port of Entry and the examination has begun.

If you decide to travel to the US, then you should be prepared to answer all questions truthfully and honestly.  You should consider not travelling to the US with any electronic device that may contain information you are not comfortable sharing because of your principled objections. The contents of your vehicle should reflect the same considerations.

The U.S. Customs and Border Protection Agency states unequivocally they do not discriminate with respect to the entry of foreign nationals to the United States “based on religion, race, ethnicity or sexual orientation.”  However, the Agency has clearly stated its top priority is the “prevention of the entry of terrorists and their weapons into the United States, while facilitating legitimate trade and travel.”    Depending on the perspective you advocate for, questions about religion and political views can be justified with the ambit of determining whether a person should be granted the privilege of entering the US.

US Border officers who engage in enhanced security screening examinations feel very much entitled to ask all sorts of questions, including questions about a traveler’s religion and political views.   To them, this questioning seems part and parcel to the need for assessing the lawful purpose or intention of a non-resident seeking entry into the US.  Irrespective of whether such line of questioning seems to offend or suggest a discriminatory intent, engaging in that debate at that particular time and in that specific place – at the US border – and with an officer who clearly feels within his right to determine your admissibility – seems futile.  Expect it will not end favorably for you. Not only are you likely to be returned back to Canada, more serious action can be contemplated.  Further, you can be sure that your examination will be documented, affecting future attempts to enter the US.

While recourse mechanisms are in place to challenge your treatment at the US POE and/or a decision to not admit you, the prospects of success are quite low, and so how this impacts your need or desire to enter the US must be considered.

A more pragmatic Approach

Taking a strong principled approach as opposed to a more balanced pragmatic approach is likely to consequences.  Before seeking to enter the US, you need to fully understand the situation and the circumstances and make informed decisions.  Also, it is important to recognize that the overall experience at the US Port of Entry is overwhelmingly positive.  The current situation needs to be placed into a proper perspective.  It serves no utility to overstate the complexity of the issues.  At the same time, while the number of people who are not being granted entry into the US is relatively low, nonetheless, the potential for much wider implications is real. All Canadians seeking to enter the US need to be cognizant of the political and legal climate that pervades over this period of uncertainty and unpredictability.

I urge Canadians to be patient and understanding as our American neighbors adjust to the new administration in Washington and figure out the proper balance between border security and continuing the free flow of people and goods across our border. Not only do we have shared values and common interests at stake, our people have a deep and entrenched interconnectivity, economically and socially, that is far stronger and more powerful that the borders that separate us.

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