It has been a common theme that U.S. immigration, customs and border protection have become more stringent than ever before. If you are travelling to the U.S. for the Holidays, ensure that you are properly prepared and are well informed about the powers that U.S. Customs and Border Protection (“CBP”) have when processing you.

If you are travelling by air to the U.S. at an airport that offers Preclearance Screening

U.S. CBP agents have operations located in several Canadian airports to allow CBP agents to inspect travellers to the U.S. boarding U.S.-bound flights. These operations are called U.S. CBP Preclearance. The location and operation of Preclearance is authorized by a Canada-U.S. Preclearance Agreement (“Agreement”).

Recent Changes to the Canada-U.S. Preclearance Agreement

A recent revision to the Agreement has extended the powers of U.S. CBP agents and has limited the rights of travellers when interacting with U.S. CBP officials.

Extended Powers of CBP Agents

The extended power include:

  • the ability to carry sidearms in preclearance areas,
  • perform strip searches of travellers,
  • record and maintain passenger information,
  • detain travellers, and
  • U.S. officials may also override decisions of Canadian officials with respect to whether searches and detainment are necessary.

Restrictions on Travellers Rights

The restrictions of travellers rights include:

  • Travellers no longer have the right to withdraw from preclearance questioning.

Previously, if a Canadian traveller chose to withdraw from a preclearance questioning, he or she could leave the preclearance area without repercussions. Now, U.S. preclearance officers have the authority to hold and question travellers on “reasonable grounds”, even after they have expressed an intention to leave the preclearance area.

In fact, a request to leave may itself constitute reasonable grounds for questioning. CBP agents in Preclearance now have the authority to require Canadian travellers to explain their reasons for wanting to leave and withdraw from preclearance questioning.

Do travellers have any rights when dealing with CBP agents?

CBP agents’ authority to detain Canadian travellers may only be exercised to the extent that doing so would not unreasonably delay the traveller’s withdrawal. To date, no guidance on what amounts to “unreasonable delay” has been provided.

Expedited Removals on the Rise

Further restrictions that are cause for concern for travellers over the holiday season include the increase in expedited removals. An expedited removal is an order of an officer to immediately remove non-U.S. citizens from the U.S. The basis for an expedited removal is:

  1. Misrepresentation or Fraud
  2. Attempting to enter the U.S. without proper authorization:
    • Without prior approval of a necessary visa, status, or
    • When submitting an application:
      • failing to provide all necessary application materials
      • Applying for the incorrect visa or status
  1. Falsely Claiming to be a U.S. citizen

The issuance of an expedited removal carries a mandatory ban from travelling to the U.S. for any reason, for a minimum of 5 years. Expedited removals are issued without a hearing and travellers have no right to appeal an officer’s decision once an expedited removal is issued.

In the past 12 months, expedited removals have nearly doubled as compared to the previous 12 months. Many travellers are being ordered removed in circumstances where, previously, they would have just been turned back to Canada. CBP has not disclosed any recent policy changes that would explain the spike in expedited removals.

Several recent cases of expedited removals stem from travellers simply being unaware of the required documentation. In one case, a Canadian mistakenly believed the type of visa he required could be issued at the U.S. border. Such cases demonstrate that the bar for receiving an expedited removal is much lower than knowingly committing immigration fraud.

Extra Precautions and Preparedness is Now Required

With the increase in powers to CBP agents, the reduction in the right to withdraw, and the increase in expedited removals, entering the U.S. has become more complicated than ever. Travellers to the U.S. should therefore take extra precautions to ensure that they have the necessary documents in place before attempting to cross the U.S. border. Travellers should be as clear as possible about where they are going in the U.S., what they are doing, and when they plan to return to Canada.