What are some reasons Canadians may be denied entry at U.S. border?

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Last week, the federal government updated travel advice for Canadians going to the United States. The update to the entry and exit requirements section highlighted the fact that U.S. border agents have discretion to determine whether or not a traveller can enter the country.

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It urged Canadians to “comply and be forthcoming” while interacting with authorities and warned that travellers could be “detained while awaiting deportation” if entry is denied. “Expect scrutiny at ports of entry, including of electronic devices,” the travel advice webpage says.

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“Our recent updates will help ensure Canadians are aware of and can comply with U.S. border and immigration rules,” said Global Affairs Canada spokesperson Charlotte MacLeod in an emailed statement to the National Post on Monday.

“Each country decides who enters its borders. The decision to travel is the sole responsibility of the traveller.”

Here’s what Canadians should know.

What are some reasons Canadians may be denied entry at the U.S. border?

There are many reasons why Canadians could be denied entry into the United States.

“The usual reasons for refusing entry include that the person should have a visa but does not; is inadmissible because of a criminal conviction; poses a risk to national security; will not abide by the terms of their visa or admission category etc,” says University of Toronto law professor and chair in human rights Audrey Macklin, in an emailed statement to the National Post on Monday.

Another reason Canadians could be turned away, as outlined by the U.S. Embassy and Consulates in Canada, is due to cannabis use or association.

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Although certain states have legalized marijuana use, “the sale, possession, production and distribution of cannabis or the facilitation of the aforementioned remain illegal under U.S. Federal Law,” the embassy says. Violating the law at a border “may result in denied admission, seizure, fines, and apprehension.”

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“A Canadian citizen working in or facilitating the proliferation of the legal cannabis industry in Canada, coming to the U.S. for reasons unrelated to the cannabis industry will generally be admissible to the U.S.; however, if a traveller is found to be coming to the U.S. for reason related to the cannabis industry, they may be deemed inadmissible,” says the embassy.

Not having the correct documents is also grounds for denial.

In order to enter the U.S., Canadians must have a valid passport (or NEXUS card) when travelling by air. For travel by land or water, Canadians must have a passport, a Trusted Traveler Program card, an approved enhanced driver’s licence or identification card, or a Secure Certificate of Indian Status.

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“But at this moment, all of this is besides the point,” said Macklin. “Canadian travellers should not place undue confidence in the fact that they have done everything right and there is no basis to exclude them.”

What makes someone inadmissible under U.S. law?

Under the Immigration and Nationality Act (INA), there are several reasons a person may be considered inadmissible to the U.S. For example, a person is not admissible if they were in the U.S. illegally for more than 180 days (but less than a year) for one single stay, left the U.S. voluntarily before being removal proceedings began, and then tried to re-enter the U.S. within three years, as outlined by U.S. Citizenship and Immigration Services.

Other grounds for denying entry are found in section 212 (a) of the INA, Fernando Chang-Muy told USA Today. Chang-Muy is the Thomas O’Boyle lecturer in law at the University of Pennsylvania Carey Law School.

“The reasons could be like health-related grounds and the clause reads you will be found inadmissible and you cannot come in if you have a disease of public health significance, like tuberculosis, etc.,” he said.

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He continued: “We’re not going to let you in if we know that you have a criminal issue. We’re not going to let you in if you have security or related issues, you’re a member of al Qaeda (for example). We’re not going to let you in if we know that you’re poor and you might go to the welfare office to apply for food stamps and cash and medical assistance … We’re not going to let you in if we think you’re going to work illegally.”

Canadians are ‘powerless’ at the border’

“As a general proposition,” said Macklin, “one is nowhere more powerless than at a border. You are not a citizen and border officials can make demands that are unreasonable or even unlawful. What are you going to do? States have no obligation to admit non-citizens and if you are lucky, the worst that would happen is that you would be turned away.”

Now, she said, it’s a possibility that Canadians could be “arrested, detained, and abducted to a detention facility in Louisiana or Texas.” Canadians are reliant on the “rule of law to guarantee” that the government won’t abuse its power.

“Even before (President Donald) Trump, that faith was betrayed too often, and discretion was exercised arbitrarily and without reasons. The situation is exponentially worse now,” she said.

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Macklin said she considers it “unwise” for Canadians to simply believe they’ll be granted safe entry into the U.S. because they’ve “done nothing wrong.”

Most Canadians will be allowed into the U.S., as per usual, “but a few will not, and one cannot predict who will be stopped, or why, or what U.S. authorities will do them,” she said.

“So Canadians would do well to apply the standard formulated by that beloved U.S. cop (who also didn’t think the rule of law mattered), Dirty Harry: ‘You’ve gotta ask yourself a question: Do I feel lucky? Well, do ya punk?’”

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