Navigating the Canada-U.S. border: What are your rights?

A U.S. Border Patrol agent checks passenger identifications aboard an Amtrak train from Chicago to New York City on June 5, 2013 in Depew, New York. The Border Patrol also monitors cross along the northern border between the United States and Canada. (Photo by John Moore/Getty Images)

Canada Now: Who we are at 150

With summer almost here, Canadians might be digging out their passports in preparation for getaways south of the border. When it comes to crossing the line itself, it’s important for people to know their rights—which, if you get pulled into what’s called secondary inspection by border guards—are nonexistent.

Travellers can be detained randomly, although that’s fairly rare; when people do get sent for further questioning, it’s because they’ve been flagged as a person of interest, and border guards have a duty to ensure they’re not in violation of U.S. immigration law, explains Vancouver lawyer W. Mark Belanger, founder of Border Solutions Law Group.

“You have no rights at the border—none,” Belanger says. “You don’t have the right to a lawyer, you have no due-process rights, you don’t have a right to a hearing. You have none because it’s the border. They have to deal with terrorists and drug dealers and all kinds of criminal elements, and they don’t have time or the resources to give you a full trial on the merits and the right to a lawyer and all the expense and costs associated with it….They are judge, jury, and executioner.

“It’s the same in Canada, by the way,” he adds. “The CBSA [Canadian Border Services Agency] officers have the same authority….In the U.S., they have enemies, and they’re the first line of defence. So, they have unfettered discretion, pretty much, on whether or not you’re admissible and if they need to detain you to investigate, then so be it.”

Border guards don’t need a warrant to search you or your bags, and in secondary inspection, they will do a more thorough background check, having access to information from the RCMP and other Canadian data.

They will check not only if you’re allowed to cross the border for your stated purpose but also if you have the proper status—for instance, a work visa if you’re travelling for employment reasons. People can be turned away if they have a criminal record, are breaking any immigration laws, or if they have certain communicable diseases.

What to do if you’ve been rejected

If you do get rejected heading into the U.S., you can and should ask why, Belanger says; it will be much easier to get details then and there rather than by filing a Freedom of Information request after the fact. He also suggests inquiring as to what you can do to remedy the situation.

Depending on the seriousness of the reason for not being allowed entry into the United States, the border patrol could put what’s called a “TECS hit” on your name. According to the Department of Homeland Security, TECS is the principal system used by officers at the border to assist with screening and determination regarding admissibility of arriving persons.

“Any primary inspection officer will see it and they will do a secondary inspection immediately,” Belanger says. “Typically, if there’s no issue or concern, after six months to a year the TECS hit will be removed from your profile as a matter of administrative course.”

If not, that’s when you might want to consider legal assistance.

How to avoid hassle

To avoid any unnecessary complications at the border, Belanger has a few tips.

Border guards need to know where you’re going, why, and for how long; he suggests travelling with related documentation at all times, even if it’s just a short trip. Assuming you’ve booked a hotel, have your confirmation ready, and be prepared to show an itinerary.

Then there is the need to be on your best behaviour.

“One of best tips I can give my clients is to be polite,” Belanger says. “I’ve seen it myself and it’s a wonderful way to create a sense of respect between you and the officer, and they appreciate that. Don’t challenge. Be deferential and respectful of their uniform.

“The U.S. has a military culture, and the folks at border are usually ex-military,” he says. “I always say ‘Yes, sir; no, ma’am’ is a great way to approach them. Show deference and respect for their uniform and they will, in kind, will pay a lot of respect in return.”

Keep in mind, too, that nowhere does it say people are entitled to cross borders.

“We don’t have an inherent right to enter the U.S., and as a result they can deny you entry if they have reason to believe you’re in violation of their laws,” Belanger says. “It’s a privilege to be able to enter as a Canadian, not a right.”

Are people still visiting?

Whether the election of Donald Trump has resulted in more Canadians being denied entry into the U.S. isn’t clear.

Maclean’s points to U.S. government statistics as showing refusals of Canadians at American land crossings dropped 8.5 per cent between October 2016 and the end of February compared with the same five-month period a year earlier. It also reported that the refusal rate was 0.05 percent in that same time frame, down from 0.06 at the same period from 2015 to 2016.

The Globe and Mail, meanwhile, compiled numbers from agencies in Canada and the United States, claiming the number of people who were turned away by U.S. Customs and Border Protection agents increased by 6.7 per cent in 2016 from the year before.

Data obtained by Ipsos as part of a Yahoo Canada poll conducted in April showed that there are more people who are nervous when approaching the border (14 per cent), while more (19 per cent) plan on avoiding travel to the U.S. altogether for the foreseeable future.

Many Canadians have changed their travel plans in light of perceived changes in the U.S. (Yahoo Canada)