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Executive Disorder: How to Prepare for Vetting at U.S. Immigration

If you have reason to believe U.S. border agents will give you a hard time, here’s how the experts say you should get ready

Since the Trump administration’s Jan. 27 travel ban that attempted to bar people with ties to seven predominantly Muslim countries, uncertainty has circled, vulture-like, over the future plans of thousands of would-be travellers to (or through) the United States – from asylum seekers to longtime U.S. residents who hold green cards.

The courts may have suspended that executive order, but the White House has promised a replacement version soon.

The broader situation is this: U.S. immigration policy is likely to change quickly, frequently and unpredictably for a few years. Expect the common thread to be that some people can blithely pass through U.S. customs without worry, while it’s a fraught experience for others.

Who should brace for special treatment from U.S. Immigration and Customs Enforcement (ICE)? Perhaps anyone with a connection to predominantly Muslim countries like Egypt and Pakistan has cause to worry? Should all refugees? People of certain political orientations?

It’s impossible to know what to prepare for, given the suddenness and vagueness of the last executive order – and the difficulty of knowing what the next order might say, the inevitable uncertainty around how individual ICE officers will enforce it, and the impossibility of knowing how the courts will react.

January’s order “was obviously called with no preparation whatsoever for the people who would be called upon to enforce it,” says Bruce Allen, an immigration lawyer who’s qualified for both Canada and the United States, with offices in Cleveland and Chester, Nova Scotia.

So here we are. If you have reason to believe you should fear being unlawfully or unreasonably detained or denied entry by U.S. immigration, experts say it’s best to be prepared.

What should you do before travelling? And if you end up getting detained, how should you deal with it? Herewith, an attempt to provide at least a little practical advice for innocent people who worry they may be in for more than the usual measure of scrutiny.

Share your travel plans in advance

First things first: If you’re concerned you may be a target for a future immigration executive order, look up an immigration lawyer and have their contact info ready. If you’re especially worried, make an appointment to talk about your situation.

“I don’t want everybody in Canada who’s planning a trip to the U.S. in the next year to have a conversation with me. [But] if you’re born in Syria it’s probably a good idea to talk with someone who’s an expert in the field,” says Allen, the immigration lawyer.

You want a U.S. lawyer, and you'll find a directory of them at American Immigration Lawyers Association. And there’s a list of organizations that help low-income people with immigration issues at www.immigrationlawhelp.org.

According to the National Immigration Law Center, it’s a good idea to carry a completed and signed G-28 form [links to PDF] that officially tells border security that you have retained a specific lawyer.

Will it help? Maybe. The G-28 form is supposed to authorize your lawyer to access your immigration file and correspond with U.S. immigration authorities on your behalf.

But your chances of having access to a lawyer could be higher if you’re charged with something. Allen explains: “It’s not a crime to be from Yemen or Syria or Iraq,” so most of the people detained under the recent executive orders weren’t charged with anything when trying to enter the United States. While no charge might seem like a better situation than being charged, the counterintuitive fact is that not being charged means you will not have the automatic right to a lawyer. “Once you’re there [in temporary detention], it seems it’s been difficult for people to obtain lawyers,” Allen says.

When a lawyer has been allowed into the room, it has often been family members who did the most pushing and persuading. So once again it’s a good idea to decide on a time when you’re going to check in and say you’ve arrived safely and cleared your ICE interview – because otherwise you may need trustworthy advocates on the outside.

“Make sure you have a family member who knows what your plans are, know where you’re going, and knows when you’re supposed to walk out of there,” Allen says. And if you don’t show, your relative can call your lawyer to intervene. (Just make sure your mom or brother or whoever has the lawyer’s contact info.)

So that’s it: Visiting the United States has become – for some people – like hiking through bear country: Best undertaken while armed with professional advice, and with your whereabouts carefully shared with others in advance.

Go through preclearance

If you suspect you may encounter trouble with ICE officers, it’s best to face them in Canada, where they can’t detain you. Here’s a list of Canadian airports that offer it.

If you’re about to fly out of an airport that offers U.S. preclearance and you’re rejected for entry into the United States, you’ll be able to simply walk out the door and go home.  “Whereas if you’re at Logan or JFK or LAX and a problem arises, you could be detained for a day or two,” Allen explains.

(Well, that’s the rule for now anyway. As the CBC reports, Bill C-23, currently before Parliament, proposes to allow U.S. customs officials to detain Canadians on Canadian soil. The U.S. side of the legislation already passed through both houses of Congress last December.)

Billy Bishop Airport doesn’t offer U.S. preclearance yet, but the legislative approval is in place, so we expect that it will sometime in the foreseeable future.

Protect Your Information

People in uniform can’t demand and search your electronic devices while you’re walking down the street (…yet?), but they have broad search powers at a border. ICE has reportedly been making use of these powers a lot lately.

“Assume that your phone’s going to be looked at, that everything you’re carrying is going to be looked at. If you’ve got stuff in there that you don’t want U.S. customs officials to consider, don’t take that phone, or delete those contacts,” Allen says.

“I’m not advocating that people obstruct legitimate inquiries, just that people be aware of what [ICE] can look at.”

Which is apparently just about anything.

Why would an innocent person worry, you ask? Well, have you heard the one about the woman who was blocked from the United States for having prayers on her phone? There’s no telling what kind of innocent material on your phone or laptop might raise the suspicions of an immigration officer.

You can pray they don’t find any, or you can make sure they don’t. There are ways to prevent your devices from turning into little electronic traitors in your pocket, filled with innocent information that will nevertheless make border security suspicious of you. It would be wise to consider measures such as temporarily scrubbing your devices of most information while you’re in transit. There are even ways to use two-step verification to prevent anyone – including yourself – from being able to access the information until you arrive at your destination.

Recent stories by Andy Greenberg at Wired and Cory Doctorow at BoingBoing go into more detail.

Always Be Honest

Whatever you may be nervous about, and however terrifying it may be to be led into the fluorescent-lit purgatory of customs detention, do not embellish and do not mislead immigration officials.  

“Whatever you do, don’t lie,” Allen says. “Because that’s misrepresentation and that’s a lifetime bar from the United States.”

His other piece of advice is even shorter. “Be succinct, [get] to the point, shut up after that.”  

Finally, the National Immigration Law Center advises: “Do not sign any document that an immigration officer pressures you to sign without first consulting with an attorney!”

Godspeed to all travellers.

Published Thursday, February 23rd 2017

Header image credit: Shutterstock



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