Monday, December 9, 2013

A Canadian Expedited Removal Case in the Ninth Circuit by Timothy Dugdale

A curious case is currently under review in the U.S. Court of Appeals for the Ninth Circuit. John Smith, a Canadian vacationer, attempted to enter the United States to visit Arizona where he had been photographing skydiving and motorcycle events for a number of years. CBP officers smelled a rat. He was issued an expedited removal because the "CBP determined that petitioner was inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), on the basis that he was an immigrant not in possession of a valid entry document who intended to work in the United States as a photographer for compensation."

Smith's counsel entered a habeas petition with district court in Washington State, arguing that non-immigrant Canadians were exempt from expedited removals because they were exempt from having to present valid documentation. In other words, Canadians were not aliens arriving at the border. The district court was unconvinced.

    Under subsection 1252(e)(2), the habeas court is limited to determining whether the     petitioner is an alien, whether the petitioner was ordered removed under the expedited     removal process, and whether petitioner can prove that he is a lawful permanent resident of     the United States, refugee or asylee. 8 U.S.C. § 1252(e)(2). “With respect to expedited     removal orders, ... the statute could not be much clearer in its intent to restrict habeas     review.” Li v. Eddy, 259 F.3d 1132, 1134–35 (9th Cir.2001), vacated on reh'g as moot, 324     F.3d 1109, 1110 (9th Cir.2003); see also de Rincon, 539 F.3d at 1141.

Smith satisfied none of the aforementioned three criteria that allow a habeas challenge to an expedited removal. He nonetheless filed a timely petition with the Ninth Circuit Court of Appeals. They took the petition, perhaps as a test case of first impression, both for the alien exemption of Canadians and institutional bias of the CBP against Canadian visitors and those Canadians working in the US under NAFTA TN visas. Smith went to court with friends, many of whom were interested in the implications of his case for cross-border trade.

The amici brief took aim at the heart of INA 235:

As part of this rule, at 8 C.F.R. § 235.3(b)(2)(i), the Attorney General specifically exempted from expedited removal those “ for whom documentary requirements are waived under ... [8 C.F.R.] § 212.1.”

Given this regulation, Amici assert that judicial review is available where CBP has abused its authority and placed one “for whom documentary requirements are waived under… [8 C.F.R.] 212.1” into expedited removal.

The brief, intent on pointing out the northern border is between two friendly nations with a half billion dollars of commerce a year,  moves in for the kill in its conclusion:

    Canadian citizens must be able to approach the U.S. border without fear of being subjected to     a     five year ban for which there is no recourse. The District Court’s decision denying judicial     review of CBP’s imposition of expedited removal on a non-immigrant Canadian not only     renders 8 C.F.R. § 235.3(b)(2)(i) meaningless, it has a significant longterm chilling effect on     the USA/Canada trade relationship.

Oral arguments were held in August 2013 and a ruling is imminent. Strangely enough, no Canadian authority or individual came forward during the 60 day period of review when the expedited removal statute was hatched in 1997 by Congress. Will the Ninth point to that crucial window of (lost) opportunity to uphold the immunity of the expedited removal process from challenges? Or will the court agree with Smith that Canadians, because they are exempt from presenting valid documentation, cannot be deemed an alien and thus subjected to an expedited removal under INA 235? If Smith wins, will all Canadians without a criminal record who were previously subjected to expedited removal be cordially invited to cross the border, pretty as a picture?

This is a case with potential profound ramifications for immigration reform. For example, Michigan Governor Rick Snyder, who sold himself as a moderate Republican to voters in 2010, has suggested an Urban Pioneer Visa program that would invite ambitious immigrants to settle in de-populated areas of the state.

It remains to be seen what such a program would look like. Would TN visa requirements be loosened to at last allow self-employed go-getters into the United States if they're willing to do their thing in places like Detroit or Flint or Buffalo? Would there at last be some sort of legal path to LPR status from the TN? What protections would be built into that path to protect against expedited removal on the suspicion of dual intent (See Khan v. Holder (2010))? And because many of these urban pioneers would no doubt have roots in Canada, there would need to be a multi-entry mechanism that did not require advance parole to come and go, perhaps involving an advanced integration with the NEXUS program. 

By Timothy Dugdale, Ph.D., Founder, Atomic Quill Media

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