Drive Like a Canadian and Get A Bullet Up Your Ass

“You can drive any way you want in Canada. But if you drive that way down here somebody might put a bullet up your ass.”

That was the advice Joel Helle, an officer with 9 years working for CBP, gave to a Canadian driver just after he grabbed the driver by the neck. But let’s recount what happened.

From the story in thenorthernlight.com, an SUV with BC plates drifted into Helle’s lane on the interstate. Both vehicles eventually pulled over, and Helle – feeling that the driver had tried to run him off the road – started banging on the driver’s window with his CBP badge. When the driver rolled his window down, he asked if he had tried to run him off the road because he was a CBP agent (he was in plain clothes and in his own vehicle at the time).

Then when the driver reached for something in the center console of the SUV, that’s when Helle chocked him.

Helle was convicted of felony harassment, which he had pleaded guilty to. Part of his sentence is mandatory anger management training and evaluation.

This is obviously an isolated case, but it shows the potential danger of giving carte-blanche authority to people who are not mentally/emotionally sound enough to use it professionally.

Gut Feelings and Misinformation

CBP had to do a bit of damage control after one of their own called the Port Angeles border patrol office a black hole with no mission or purpose, and that they had very little work to perform. Interestingly, the officer has gone off the radar although he’s supposedly still working for CBP (one can only imagine what happens internally to those that speak out in such a way).

Back to the damage control though – so the Port Angeles supervisor, Jose Romero, addressed the Port Angeles Regional Chamber of Commerce on Monday at a luncheon, wanting to reaffirm them that the CBP presence did have value, that they weren’t short of work, they weren’t a black hole, etc. etc. You can read about the event from the SeattlePI website here.

Now, I’m going to assume that article follows good journalistic integrity, and that anywhere there’s quotes indicates something that was actually said. So let’s examine some of the soundbites shall we?

Romero devoted much of his 45-minute presentation to immigration issues, adding that an immigration violation can be charged as a felony.

Border Patrol checkpoints are "part of what we do," he added. "We look for ways to determine who is coming into this country illegally and who hasn't."

Questioning someone's immigration status comes partly from a "gut feeling" the agent might have about the person and often begins by "just going up to someone and saying, 'Hi, how are you?'" Romero said.

"There is a very short window to make the determination to go to the next level," he said.

That next level could include asking for a name and date of birth, which agents run through a database.

I don’t doubt that “gut feelings” are part of any law enforcement process. Of course, this means that people can be singled out not necessarily due to one’s appearance or mannerism, but even if the officer doesn’t understand what you do for a living.

Also interesting is that “asking for a name and date of birth” is the “next level”. All people need to present a passport when entering the US, which brings up their information from a database. In fact, for those that have never experienced it, it usually starts with:

Hello. Where are you going? What for? How long will you be in the US? Where are you staying? Who do you work for?

I found it funny that what’s presented is some sort of watered down version of reality – that based on how someone responds to “how are you” determines if they’re inspected further. Everyone is inspected further. The only “next level” is secondary inspection.

Alright, let’s look at a second bit from the article:

"The northern border has now become the focal point," Romero said. "It's extremely porous."

Canada has not been the easiest partner to work with in monitoring the shared boundary despite the existence of what Romero said were "75 known factions of some kind of terrorist group" in that country.

"It's not as good as I would like," Romero said of "cooperation" from Canada. "We're working hard to get that relationship going."

Hmm…pretty sure there’s more drug, violent crime, and illegal immigration activity happening at the south Jose, so while Canada might be a focal point for you to justify your role, I don’t think we present as much danger as you think.

Wait, wait…he did mention that there are 75 known factions of some kind of terrorist group in Canada. Here’s the funny thing: Canada actually only lists 43 groups as known terrorist organizations, so not sure where the other 32 came from (maybe the US has a different list?). And I’m happy to hear that cooperation from Canada isn’t as good as they’d like, only because what we’ve seen from the US is “cooperation” usually means “give us what we want”. Considering that Canada customs asked me where I was staying after my last trip to the US, I’m pretty sure there’s quite a bit of information already being shared.

Whether the Port Angeles post is a black hole or not, or whether we’ll ever see that young officer who blew the whistle, we’ll probably never know. What we do know from this luncheon is that the Port Angeles Regional Chamber of Commerce got a rosier, American-friendly picture of border security that may not accurately reflect what’s really happening.

Canada–Come for the Bingo, Stay for the Jail

She was handcuffed, interrogated, and strip searched by border guards. A jar of motor oil in the back of her vehicle tested positive for heroin, and thus began a horrible ordeal by a 66 year old grandmother that resulted in spending 12 days in a remand center. All charges of drug trafficking were dropped when the test that originally detected heroin was proved wrong – there was no heroin.

What US border station did this atrocity happen at? None. It was at the Canadian border station at Sprague, Manitoba. Watch this interview with Mrs. Goodin to hear the details of her ordeal:

Well doesn’t this just give us an insight into the inner workings of our CBSA agents. An organization that demands truth and honesty is free to make up things like how a drug-sniffing dog found traces of cocaine, pot, and meth. Also, we don’t really know details yet of how that test was performed…and was a second one done to ensure that the first one was correct?

And the crown in this case, asking that she *not* be allowed to stay at her daughter’s home because she’s a flight risk? You’d think we elected our crown attorneys and someone was up for a re-election year, having to show how “tough on crime” he/she is.

This is the type of thing that happens in the movies, and/or in different countries; not Canada! The CBSA has a great deal to explain here, and Vic Toews has already asked the CBSA head to provide a report on the incident. Of course, we may never know how badly they screwed this incident up citing the oh-so-convenient “privacy concerns”.

Mrs. Goodin, on behalf of my country I apologize for your ordeal and I hope that if you do decide to bring civil action against the CBSA, that you win and get every dollar you deserve for such an obvious abuse of power by a group of empowered bullies!

Conceding to American Pressure–How Canadian

American fisherman were in uproar earlier this month when one of their own was fined $1000 for not reporting in to Canada’s CBSA (Customs and Border Services Agency) once he had crossed into Canada’s waters. By law you can’t cross in and fish without first contacting CBSA. From an article on Syracuse.com:

Andersen was acting under the long-standing belief by many Americans who have fished or enjoyed recreational boating on the river that as long as one doesn't anchor or set foot on Canadian land, there's no problem. Since the incident, Canadian customs officials have said that's not the case.

OUTRAGE! Americans rallied, even getting Representative Bill Owens involved and calling Canada’s Ambassador Gary Doer’s response “unacceptable”. A meeting with CBSA representatives didn’t resolve anything other than re-state the rules, and another article suggests that Canadians have it easier than their US counterparts when it comes to fishing rules.

In the end, Canada compromised and issued a statement announcing an amendment to the rules – fisherman can now call in via cell phone to CBSA when they cross into Canadian waters.

I’m conflicted on how this went down. On one hand, I’m actually very proud of Canada that we did the right thing and made concessions to our American neighbors. This is how two countries so close together should handle border issues.

On the other hand, I’m very frustrated that if this situation was reversed, it would never have gotten the same attention from our southern neighbor. In fact there are so many instances of injustice where people aren’t just fined but barred from entering the US, even after living and establishing a life there, that Canada’s quickness to move on this seems outrageous.

I’m thinking of writing Gary Doer myself, highlighting issues with the border we currently have and some possible solutions for them. If a bunch of American fishermen can whine and get what they want, I think some reciprocities on other items is due.

Thoughts From A CBP Secondary Inspection Area

She’s anxious. Sitting with her husband, they talk to each other in their native Chinese dialect while looking at their watch. She flags down a CBP officer and points out that their flight will board soon. They, like me, have been chosen for a “random” luggage inspection. When that happens your checked luggage is retrieved from wherever it is in the airport and put through a luggage scanner again (I say again as this is the same machine the TSA use). Of course, the goal of this isn’t just to have a closer look at your luggage – its an opportunity to further scrutinize why you’re travelling to the USA.

The CBP officer tells the woman bluntly that its not her (the CBP officer) fault that she (the woman) didn’t give herself enough time to clear customs when arranging her flight. The woman returns to her seat, still upset.

Meanwhile, the guy sitting across from me has been called up. His luggage has arrived and will be inspected. I watch as the CBP officer goes through his backpack. He also requests his wallet and goes through it.

Another guy at the next numbered counter area is getting himself in trouble. It sounds like he’s going to the US on business, and he’s gotten a visa previously. He’s giving the CBP officer attitude, assuming that since he’s gotten a visa before he should be able to get it again and he’s also trying to avoid or be evasive with his answers to their questions. Another CBP officer joins the discussion, clarifying that visas are evaluated on a case-by-case basis and that the guy should be more respectful of the CBP office and its role. The original CBP officer he was dealing with steps back into the conversation, asking the guy what part of his question he was having trouble understanding. “Do you have some sort of hearing impediment sir, is that why you aren’t understanding me?” he asks. After the lecture, the man is asked to have a seat, they’ll call him up later.

I watch the clock on the wall. 45 minutes to my flight leaving…30 minutes to my flight leaving…I realize that more than likely I’ll miss my flight. There is no urgency in retrieving the luggage, or moving the luggage through the secondary inspection. Finally my name is called, and the officer sends my bag through the scanner. He then asks me some questions – where I’m going, why, when I’m coming back – he’s typing things into his computer, then stamps my passport and walks me out. I have 15 minutes to find my gate.

As he walks me out, we pass the Chinese couple. She’s on her cellphone letting someone know about their situation. Unfortunately, you can’t use cellphones within the secondary screening area. The CBP officer tells the woman to turn off her cell phone.

I was lucky, I made my flight and my bag made it too. I wonder what happened to the Chinese couple, the gentleman who had the extensive search, and the businessman (I’m pretty sure he didn’t make it to the US that day).

This little view within a CBP secondary inspection area illustrates some very important aspects of US border security.

CBP is Not There to Facilitate Your Travel

The frank response to the Chinese lady from the CBP officer that it “wasn’t her fault” she didn’t plan her flights properly isn’t wrong. The CBP is not a travel agency, they’re a security agency. Security trumps everything, including your travel plans. There are reasons why its suggested you get to the airport a few hours early for flights to the US, and CBP is a key reason why.

CBP is Not There to Facilitate Your Business

The guy who was engaging the officers about his visa and previous visits wasn’t doing himself any favors. Especially with the current US economic crisis, there’s a heightened sense of protectionism even if its not overt and blatant. Just because *you* think you qualify for a TN visa doesn’t mean you do – its up to the officer’s discretion. And even if you have a higher-level visa beyond a TN, there’s many instances that show simply having one doesn’t guarantee you’ll be allowed entry into the US.

CBP are People, but We’re Not Their People

One thing that I noted about my time in secondary – the officers were talking and acting like regular people at a workplace. Discussions were what you’d expect at a typical workplace, smiles even. But that was to each other. To the people on the other side of the counter, the demeanor and interaction became serious and formal. Don’t assume you can have the same repoire with a CBP officer as you would with a government employee.

America Is A Different Country

It’s easy to forget that America is a different country from so many in the western world. There are so many similarities, so much shared information, shared culture – but the borders are real, and the underlying political and social differences between countries are real as well. Nobody has a right to enter another country, and if you go in remembering that and knowing what the rules are for your travel purpose, the less risk of being turned away at the border.

Dysfunction Hinders US Border Protection

The headline to this article reads:

Congressional report cites fresh concerns about security of Canada-U.S. border

A new US government report has been released on the US/Canada border situation. Oh boy, here we go again; another rant about the unsecure northern border and Canada’s loose immigration laws. At least, that’s what I thought when I started reading it. There is, to be sure, comments like this one from Joe Lieberman:

"Canadians do have more lenient asylum and immigration laws than we do here and that potentially has an effect on us because of our border,"

The vast size of the northern border was brought up as well, with only approximately 50 kms of the 6400 km border being controlled by US border patrols.

But what was really interesting was what the report the article is talking about says about DHS internally, and how dysfunction between internal factions is hindering border security. From the article:

Among other findings, the GAO report said petty rivalries between myriad federal and state agencies patrolling the border are undermining efforts to crack down not just on drug smugglers, but illegal immigrants and potential terrorists.

…some units within Homeland Security clash over who conducts border surveillance, who interviews detained immigrants and who gets credit for apprehensions, seizures and prosecutions.

Efforts, in fact, to police the border have been tainted by rivalries that "may result in inefficiencies and a breakdown of co-ordination, ultimately leading to the risk of a border that is less secure.''

Various U.S. agencies also fail to share information with one another due to mutual distrust, the report found.

Interestingly, the bright spot in regards to cooperation and sharing of information came between Canada and US departments.

So what does all this mean? Maybe the northern border is a concern. Maybe the US should step up their presence there. The article mentions that Joe Lieberman is calling for more funding and tougher security measures…maybe they need that.

Or maybe they should figure out why there’s so much distrust, inefficiencies, and rivalries within DHS. It makes one wonder how effective border security would be if everyone was reminded they’re working for the same team.

Update – I came across an article from The Vancouver Sun that also talked about the report and Joe Lieberman’s comments. What wasn’t mentioned in the Winnipeg Free Press article was this little gem:

Senator Joe Lieberman, chairman of the Senate Homeland Security committee, said the findings confirm that security efforts are "unacceptably ineffective." He said the report has raised enough concerns that he feels it is time for the U.S. and Canada to discuss whether it makes sense to require Canadians to have visas in order to enter the United States.

"I think it is something that we should be talking about with our Canadian neighbours," Lieberman told reporters.

Now, this is *just* Joe Lieberman making these comments, not Obama or the entire GOP conglomerate. Still, they need to refocus on the real issues: the dysfunction within DHS that is preventing real security from being implemented in the first place.

National Opt Out Day November 24th

The US recently released new regulations for air travel security that has many people angry and upset. You’ve probably heard about the full body scanners that have been installed in airports around North America (I say North America because they exist in Canadian airports for US bound flights). The general idea: they take an x-ray-like picture of you which is reviewed by a central command center offsite to determine if you’re trying to smuggle anything onto the plane.

The images are only clothes deep though, meaning what is seen is a naked image of you…all sides, all appendages, including breasts and genitals.

You don’t have to go through the scanner though. Instead, you can opt for a pat down. So given a choice between being subjected to some level of radiation and someone seeing you naked, some people would rather go for the regular old patdown.

Except its not the regular old pat down anymore. For a real-life account of what the new pat downs involve, check out Jeffrey Goldberg’s article in The Atlantic. Here’s a short outtake though:

At BWI, I told the officer who directed me to the back-scatter that I preferred a pat-down. I did this in order to see how effective the manual search would be. When I made this request, a number of TSA officers, to my surprise, began laughing. I asked why. One of them -- the one who would eventually conduct my pat-down -- said that the rules were changing shortly, and that I would soon understand why the back-scatter was preferable to the manual search. I asked him if the new guidelines included a cavity search.

"No way. You think Congress would allow that?"

I answered, "If you're a terrorist, you're going to hide your weapons in your anus or your vagina." He blushed when I said "vagina."

"Yes, but starting tomorrow, we're going to start searching your crotchal area" -- this is the word he used, "crotchal" -- and you're not going to like it."

"What am I not going to like?" I asked.

"We have to search up your thighs and between your legs until we meet resistance," he explained.

The article goes on to suggest that TSA is making the pat downs so much more uncomfortable than the full body scanners that people will opt for the lesser of the two embarrassments (here’s a link to a follow up article Jeffrey wrote about another experience).

So of course there’s a number of people in the US that are pissed at all of this “security theatre”, to the point that they’ve organized the National Opt Out Day. The goal, from their website, is…

…to send a message to our lawmakers that we demand change.  No naked body scanners, no government-approved groping.  We have a right to privacy and buying a plane ticket should not mean that we're guilty until proven innocent.  This day is needed because many people do not understand what they consent to when choosing to fly.

How do you achieve this goal? By encouraging EVERYONE flying on November 24th (apparently one of the busiest travel days in the US) to opt for the pat down.

Wait…say what?! OPT for the pat down?! Yes…because, the logic goes, the pat down takes way longer to perform than simply stepping into the scanner. The lines would backlog and cause huge delays, making people upset and TSA staff frustrated, and negate the benefits of those scanners.

It’s an interesting tactic and we’ll see how much of an effect this will have on air travel that day, but I suspect that the majority of travellers are focussed on getting to their destination and unfortunately that means that they’ll do whatever is the fastest method of getting through security.

More and more, the train is looking to be a better travel option.

DHS Being Sued Over Electronic Equipment Searches

Earlier this month the Montreal Gazette wrote about Pascal Abidor, a man with France and US citizenship who was the subject of secondary-inspection by US border agents which resulted in:

- Losing his laptop for 11 days
- Being frisked, handcuffed, and placed in a cell
- Fingerprinted and photographed
- Released…3 hours later

Getting the ACLU involved seemed to be what helped get his laptop back sooner than later, and (from the article)…

He is now one of the plaintiffs, along with the National Association of Defence Lawyers and the National Press Photographers Association, suing the U.S. Department of Homeland Security to have policies regarding electronic equipment changed.

Unfortunately for Pascal, he was the perfect storm for determining who should be flagged for secondary inspection:

- Muslim
- Doing his Ph D in modern Shiite history
- Pictures of Hamas and Hezbollah on his laptop
- Foreign citizenship and studying in a different country, but travelling to NY to visit family

Now he’s in the system, as he realized when he flew from London to New Jersey a few months later and was detained again. I love the comment in the article:

…agents seemed to have inside information about Abidor, asking about the last time he was stopped, how he pays for travels, his girlfriend and Ph.D. and whether he was Muslim.

This shouldn’t be a surprise, as we all know that when you get sent to secondary inspection you’re flagged in the system, especially after fingerprints and other information is gathered.

Unfortunately I don’t know how successful the lawsuit is going to be. It’ll come down to the rule of law against the fear of terrorism, and unfortunately its much easier to succumb to fear. Still, for foreigners this is another example of why crossing into the US can be dangerous. If this is how they treat their own, how do you think they’ll treat those from other countries?

The Liar, the Car, and the Cell Phone – CBSA and Your Privacy

Oh poor Derrick Anderson. He went to the Minneapolis area to buy a cheap car, came back to the Canadian border and lied about how much he actually paid for it to avoid paying extra money in duty and taxes (y’know, THE LAW). (Click here to read the Winnipeg Sun article)

A CBSA officer then went into his new car, found his cell phone, and proceeded to read his text messages; one of which showed the actual price he paid. With this new info, the poor lad had to come up with $5100 on the spot to cover the tax and other fees…a call to Daddy helped out.

Now he and his father are making an issue out of this in the local media, admitting that Derrick lied but focussing on the “invasion of privacy” from the border guard rifling through his text messages.

I’m not really going to comment on the fact that this guy is a loser for trying to mask his attempt at fraud by saying it was an “error in judgement”. You want to go to the US and get cheaper products, fine. But don’t try to screw over the Canadian economy that so richly provides you with, among other things, free health care by not paying your fair share of taxes at the border. Even with the $5100 tax tag applied, I’m sure the car was still cheaper than purchasing it up here.

Instead, let’s focus on the privacy concern. Did the CBSA officer have the authority to search the cell phone? According to the CBSA spokesperson, yes:

CBSA regional spokeswoman Lisa White said the federal Customs Act’s Section 99 allows border personnel to look closely at a wide range of possessions in vehicles.

“And that also includes examination of electronic devices such as laptops, cellphones and iPods,” she said. “These searches are authorized by law.”

That’s right folks, the Canadian Border Services Agency has full authority to examine what’s on your laptop, cell phone, external hard drive, etc. How do you think they catch those guys with child porn?

Not sure why this should be a surprise since the US instituted a similar directive last year. Still, a refresher might be in order.

If you leave Canada and try to return, realize that any aspect of your trip and/or possessions can be scrutinized by our own border guards. Just because you’re Canadian doesn’t mean you just get a free pass back into the country. I gave some travel tips in the link I just posted above, but let me add a few others.

Password Protect Your Data
Set your cell phone to require a password, same with your laptop and anything else. Now, this won’t prevent a search, but at least you’ll be aware of any searches that could occur.

Don’t Communicate What You Don’t Want Seen
Anything that could be searched, like text messages, email history on your laptop or files, etc. are all searchable by border guards on both sides of the US/Canada border. You don’t want it searched, don’t bring them or delete them from your device before you hit the border.

Our personal privacy does not extend to re-entry into the country, right or wrong. It’s the game that we’re forced to play, so know the rules before you play (and be aware of the consequences if you try to cheat).

Clarification on USCIS General Inquiry Mailbox

I blogged back in February about my experience trying to get answers through the USCIS General Inquiry Mailbox set up for Canadians to ask “general immigration questions”. I talked about my frustration with the response, which was basically “Contact CBP”.

A recent article posted by Lane Powell over at Lexology.com offers some insight and clarification on what the new email address is really for. From the article:

Not all inquiries can be handled through Canada@dhs.gov. For Canadians, many immigration issues and matters are processed at the U.S.-Canada border through a separate Homeland Security agency, Customs and Border Protection (“CBP”). For example, petitions for intracompany transfers from a foreign company to a related U.S. entity, and Trade NAFTA (“TN”) applications can be processed on a while-you-wait basis at U.S ports of entry. Because CBP is a separate agency from USCIS, port of entry-related questions likely cannot be answered through Canada@dhs.gov.

So really, the email response I received was the correct one; they couldn’t answer my questions because they’re not the right department to be forwarding those questions to.

Ah the tangled web that is the multiple departments within DHS.

Arizona’s Immigration Law and Canadians

Great article over on lexology.com by Veronica K. Choy talking about the effect Arizona’s new immigration law has on Canadians.

If you’re not familiar with the law, currently if you enter the US illegally then you are an illegal alien…but that’s at the federal level. Arizona passed a law making it illegal at the state level to be an illegal alien. This means that state and local law enforcement now has the ability to stop anyone where “reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”

From Veronica’s article:

Further, the law further states that a person is presumed to NOT be illegal if he/she is able to provide: (1) a valid Arizona driver’s license, (2) a valid Arizona Non-operating identification license, (3) a valid tribal enrolment card or other form of tribal identification or any valid US federal, state or local government issued identification (but only if the issuance of that identification is based upon proof of legal presence).

Which brings us to the critical question: “What Canadian, who is visiting Arizona on a temporary basis, would have any of the above listed documentation?”

I can answer that for you Veronica: Practically none! While this law is targeted at illegal aliens crossing over from Mexico, keep in mind that Canadians are just as foreign as anyone from any other country visiting the US, and laws like these can put us at risk of scrutiny and potential bouts of quality time with local law enforcement if *something* about us is deemed suspicious.

Think you can ignore this if you never visit Arizona? Do you visit Oklahoma, Texas, Utah, Maryland, and Colorado? Because according to the article those states are considering tougher immigration laws as well.

Have a read through the article and consider Veronica’s recommendations. And if you’re heading to Arizona, try not to look suspicious.

CBP Hunting for Eggs this Easter

First off, this is *not* an April Fools post. I really wish it were, but its not.

With Easter approaching, CBP officers will be on the lookout for a particular type of contraband coming in from Canada and Mexico. Cocaine? Heroin? Marijuana? No…the contraband we’re talking about is Kinder Surprise Eggs!

For those that aren’t familiar with them, Kinder Surprise eggs are hollow chocolate eggs that contain a yellow plastic container. Inside that container is a random toy. I grew up with these things, as did children from Mexico, Europe, and South America…but not from the USA.

It turns out that there are two reasons why the treats aren’t allowed in. For one, the US FDA labels it a choking hazard. For another, according to an article by K. Jessie Austin:

Aside from children potentially choking on the toys, the real reason Kinder Eggs are banned is the Food, Drug and Cosmetic Act of 1938. This Act prohibits the embedding of non-food items completely enclosed inside food items, unless the non-edible part has a functioning value. For example a lollipop or popsicle stick is not edible but is a useful handle. This Act was originally put into place to prevent the addition of hazardous items to processed food and has never been changed.

Luckily for the American public, CBP has been keeping a watchful eye out for these potential CoD’s (Confections of Death)! From a BrownsvilleHerald.com article:

Last year, CBP officers seized more than 25,000 chocolate eggs in more than 2,000 seizures.

So be wary fellow Canadians! You don’t want to be *that* guy or gal that gets kicked out of NEXUS for accidentally bringing a contraband chocolate egg to the border.

Related Articles

CBP Warns Against Chocolate Egg Smuggling
The Brownsville Herald

Why Kinder Eggs Are Banned in the US
AssociatedContent.com

Kinder Surprises: Banned in the U.S.A.
Canada.com

Kinder Surprise
Wikipedia.com

USA – Enter At Your Own Risk (Update on the Peter Watts Incident)

I blogged back in December about Canadian author Peter Watts and his ordeal trying to come back into Canada from the US. The trial has occurred and with it details of what actually happened.

Peter was not convicted of any assault of an officer…in fact, all those allegations were debunked at trial. He was however convicted of “failing to comply with a lawful command”. What exactly was the failure? Peter describes it from his blog:

So what it came down to, ultimately, was those moments after I was repeatedly struck in the face by Beaudry (an event not in dispute, incidentally). After Beaudry had finished whaling on me in the car, and stepped outside, and ordered me out of the vehicle; after I’d complied with that, and was standing motionless beside the car, and Beaudry told me to get on the ground — I just stood there, saying “What is the problem?”, just before Beaudry maced me.

And that, said the Prosecutor in her final remarks — that, right there, was failure to comply. That was enough to convict.

The statute being used here is Section 750.81d which status, among other things:

(1) Except as provided in subsections (2), (3), and (4), an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

Interesting. So “failure to comply” is being used as a synonym for “obstructs” it seems…how scary that simply questioning a law enforcement officer can net you up to 2 years in prison and/or up to $2,000 in fines.

While the jury did find him guilty, there have been comments supposedly by jury members who have voiced their support for Peter and that they didn’t think he really had done anything wrong, but they couldn’t argue in light of the law: yes, he had “failed to comply”, and thus “obstructed”. You can read a recent post (and subsequent ones) on Peter’s blog that talk about it.

There’s a clear message that’s been sent from this whole endeavour, from CBP, DHS, and the DA’s office:

We’re not reasonable.

It’s obvious officer Beaudry crossed a line, yet we hear nothing of punishment for his zealous actions and because of Peter’s conviction he can’t bring charges up against the officer.

If the jury, after reviewing all the evidence, really didn’t think Peter was guilty of anything other than a very loosely interpreted meaning of “obstructed”, why couldn’t the prosecutor come to the same conclusion?

The fact this went to trial at all is outrageous! Really, this entire episode couldn’t have been rectified civilly without the need for formal charges and a court hearing?

Over at Scott H. Greenfield’s criminal defence blog, he wrote about the case and we get some great insight from someone in the legal system. He writes:

Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute.  That's the normal perspective.  From the guard's perspective, had Peter Watts just done what he was told to do without challenging the guard's authority to do his job, this wouldn't have escalated into a dispute.  The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment.  Order is paramount, and would be put at risk if our boys on the front line don't have our blind support.

…

The system didn't fail Peter. The system worked perfectly.  It's the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance.  Putting aside the axiom that justice is in the eye of the beholder, the system doesn't exists to serve justice.  The system exists to maintain order.  Did you think otherwise?

…

Like Cory Doctorow, I agree completely that Peter Watts' conviction is absurd and horrible.  He was convicted for acting like a normal person under abnormal circumstances.  He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds. 

And so I close re-stating the sentiment I had when I first blogged about Peter’s plight. The US is not our country, its not our law, it holds no guarantees or privilege for us. It also hires people like Officer Beaudry to police its borders, and if officers like him are over-zealous in their actions it doesn’t matter – the law is on their side, not ours. We are true foreigners when we cross that border, no longer brothers from different homelands.

USA – Enter at your own risk.

How to Kill a Border Town

With all the efforts to increase security at the US/Canada border, nobody has been more inconvenienced than border communities. These communities that have grown up seeing their southern or northern neighbours as an extension of themselves are now faced with a new reality; one that includes formality, documentation, and increased police presence.

Consider the communities of Stanstead Quebec and Derby Line Vermont. The image below shows the two border communities. The red line is the US/Canada border. The yellow lines are examples of streets that flow naturally between the two communities, as if it was all built as one village…which it probably was.

 (Click to enlarge)

Over to the right, just off the image, is the *official* border crossing location, although from the articles I’ve read there seem to be other border crossing stations throughout the town.

Over the past while the community of Derby Line has seen an increase in police presence, in part because of Operation Stone Garden: an initiative to ask state and local police officers to help assist patrolling the town on behalf of the CBP.

This community has been highlighted twice in the past month, and citizens of both countries have been the recipients of the US DHS’s increased security measures.

Nova Scotia Couple’s Horrible Wrong Turn

The CBC story covers all the details, but in a nutshell:

- Couple dropped off son at his boarding school in Stanstead.
- Driving through the town & looking at buildings, they took a left turn
- They unknowingly entered the US and were stopped by police.

From the article:

"They called border patrol, and immediately, three or four border patrol trucks came and escorted us [to the customs office]."

The couple was escorted to the official, marked border crossing, which is on the main street that runs north-south through both towns.

The U.S. Customs and Border Protection officers were not sympathetic to the Zwaagstras explanation of how they had innocently crossed the border into the U.S., said Don Zwaagstra.

"They suggested that we could be fined; we could have our vehicle impounded; we could be arrested, deported, a number of things," he said. "You know, a couple of those types of insinuations, and it depended a lot on how our criminal records checked out."

In the end, the Zwaagstra were simply escorted back to Canada — after they were fingerprinted, photographed and forced to sign documents admitting what they had done.

"I couldn't believe it was happening, and I was totally humiliated," Nancy Zwaagstra said. "I was fingerprinted; I had my mug shot taken. It was a terrible feeling."

Two Canadians who unknowingly crossed over on a street with no visible signage about the location of the border, treated like criminals for simply making the wrong turn at a border town.

American Pharmacist and an Expensive Pizza

Consider the story of Roland “Buzz” Roy, an American from Derby Line charged with illegally crossing the border for getting a pizza from a Canadian restaurant. WCAX-3 ran a story about it:

 

What this highlights is that while Canadians might experience unpleasantness crossing into the US, Americans are exposed to the same experience. Notice that it wasn’t the Canadian security officers that arrested Roland, it was American police.

What Does It All Mean?

For starters, it means the end of the border town. The border is the border, and must be respected as such. Unfortunately, that means drastic changes for communities that for so long have strived to live without noticing that they passed into a different country on a daily basis. For all of the DHS rhetoric about working with border communities, this is a clear example of how they really haven’t understood what the intricacies of border communities really are.

Operation Stone Garden that I mentioned has $60 million US federal dollars backing it…that’s $60 million being spent on overtime for police officers from non-CBP agencies to come up and aid in patrols, catching Canadians who take wrong turns and Americans strolling down the street for a pizza.

In the end, what this means is that if you can you should just avoid border communities at all costs. The treatment and expense a wrong turn can cause is too much risk.

Links

The Raw Story – Border Patrol Arrests Man for Crossing Street

Burlington Free Press – Arrest and New Border Crossing Rules Irritate Derby Line

CBC – N.S. Couple Nabbed After Mistakenly Straying into U.S.

Kerry and Lugar Push Startup Visa Act

Senators John Kerry and Richard Lugar have introduced The Startup Visa Act in Washington today.

In a nutshell this bill will create a new type of visa that will allow foreign entrepreneurs to set up their company in the US providing they secure a certain amount of investment and produce a certain amount of revenue or job positions.

In a letter meant to circulate to other senators, they highlight the example of a Canadian company who couldn’t set roots in the US and eventually moved to Montreal:

Vanilla (http://www.vanillaforums.com) is an example of a type of company this visa would apply to. Vanilla has two founders, both Canadian. They spent the summer in Boulder, Colorado as part of the TechStars accelerator program getting advice, help, and mentorship from over 50 U.S. based entrepreneurs and investors. Numerous investors were interested in funding Vanilla and helping them to grow their company from Boulder; however neither founder was able to give investors comfort that they could get an appropriate visa to stay and work in the US. Since then, the founders have relocated to Montreal, raised $500,000, and started their company in Canada. Today, they are adding three people to their team, all based in Montreal. If successful, they will add many more people to the team over the next few years.

You can read a letter from the Senators describing the act here.

USCIS General Inquiry Mailbox – A Useless Experience

I blogged a few weeks back about a new email address created by USCIS that Canadians can use to ask general immigration questions. I sent an email asking for clarification on some scenarios regarding Canadians speaking at conferences in the US. And then I waited.

And waited.

And waited.

I checked this morning and noticed that I got a response 23 days after my initial email (so last Wednesday)! Finally, here would be the answers I was looking for! I opened the email and saw this:

Thank you for your e-mail.

You need to contact the nearest US Consulate and/or US Customs and Boarder Protection.

Regards,

USCIS/pfcg

Are you kidding me?! Now, let’s play devil’s advocate here and assume my questions were beyond what’s considered “general inquiry”. If so, why not at least state that? “Sorry, your questions are beyond the scope of this service. I must refer you elsewhere.”

And why not provide the contact information for the US Consulates in Canada, or a link to a website with their collective contact info?

And seriously, US Customs and Border Protection? Where do I call for that? The local border office? And seriously…its spelt “Border” not “Boarder”.

So what we have with the USCIS email box is just another tool to confuse and misdirect those that are trying to get straight answers about US immigration.

How disappointing.

H-1B – The Right to Control

According to some online sources, including Cyrus Mehta (a US Immigration lawyer), the following occurred:

On one fateful day, January 11, 2010, when Continental Airlines Flight 49 landed in Newark from Mumbai, India, we know that [a CBP officer] and his colleagues, hunted through the lines for Indian H-1B workers even before they showed up for primary inspection. Their minds were made up. No detailed questions were asked. The moment they found Indian H-1B workers who uttered that they were working at a client site in the IT field, their fates were sealed. They were subjected to expedited removal orders and sent back to India. Some were luckier and escaped the ER order, but still had to withdraw their applications for admission to the U.S. Nevertheless, they were all coerced into making statements under threat of being detained. CBP officials also made remarks as to why the H-1B workers, singled out for deportation, earned more than U.S. workers and should not be paid so much.

What would instigate such severe scrutiny of Indians holding US-approved visas in their passports? And why should other countries care?

On January 8, 2010, a memorandum was sent from Donald Neufeld, Associate Director for Service Center Operations within the USCIS. You can read a copy of the memorandum here.

The purpose of the memo was…

…intended to provide guidance, in the context of H-1B petitions, on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

I’ll provide links at the end of this post to some articles that go in depth to explain the contents of the memorandum, but in a nutshell it was directing officers to scrutinize whether an H-1B’s petitioner truly has the right to control and that an employer-employee relationship exists.

The straight-forward situation is between an employer and employee: a company wants to sponsor a foreign worker for an H-1B visa, and that worker will become an employee of the employer.

But there’s another situation that involves three parties instead of two:

Petitioner – This is usually the employer of the individual who will actually hold the visa.

Beneficiary– The individual who will be performing work, an employee of the Petitioner.

Client – The entity that has made an agreement with the Petitioner to have the Beneficiary come and perform work at their location.

In this scenario, the Client is not the employer of the Beneficiary. Even if the Beneficiary is going to be working as part of a team made up of people from the Client, its the Petitioner that ultimately has control over the Beneficiary. And thus lies the problem: since the Petitioner isn’t overseeing the day to day work of the Beneficiary, the Petitioner does not have the right to control over when, where, and how the Beneficiary performs the job. For the H-1B to be valid, the Petitioner’s right to control must be established.

The memorandum I linked to above contains examples showing  what would/would not present a valid employer-employee relationship, but I want to briefly mention the ones that don’t apply:

Self-Employed Beneficiaries
The thought here is that if you are your own boss, nobody *really* has any control over you while you’re in the US; you can’t be your own master.

Independent Contractors
Just because you’re contracted to one organization doesn’t mean you couldn’t also be contracted to another. Ergo, the Petitioner doesn’t have the right to control you.

3rd Party Placement/ “Job Shops”
A company needs a software developer for a project their working on. Your company contracts you out to them to fill the need. While you’d you be working there, you’d report to the client’s project manager and they would be directing you in your day to day working tasks. You see where this is going: the client is exercising the right to control, not your employer (who would be the petitioner as well).

Interesting spins on foreigners working in the US isn’t it?

But it begs the question: with the US placing more restrictions on foreign workers and with harsh punishments that unknowing employees could be subject to (that “expedited removal” process mentioned earlier carries with it a 5 year ban on entering the US), what incentive is there for us to even try?

Reference Links

Cyrus D. Mehta Blog

Nation of Immigrators Blog

Jan 8 2010 USCIS Memorandum

USCIS General Inquiry Mailbox – Still Waiting

I posted a few weeks back about a general inquiry email address setup for Canadians to submit questions to the US Citizenship and Immigration Services department.

On January 25th I submitted an email to them asking for clarification on the rules surrounding Canadians wishing to speak at conferences in the US. A week went by and I heard nothing…not even a “Thanks for your inquiry, here’s the expected timeframe to receive an answer.” So I emailed them again on February 1st asking for verification of receipt and whether I could get a time frame for the response.

Crickets.

So tomorrow will be two weeks since my initial email and I haven’t heard anything. It’s one thing to set up a service and tout how great it is that Canadians have this new avenue for getting info, but its totally another to make it useful and provide value.

I’ll keep watching the inbox, but I’m not holding my breath.

Buy American Deal – Much Speculation

Tomorrow we should receive official details on the new agreement between Canada and the USA regarding easing the “Buy American” provisions in the US stimulus program.

Until then, we have a number of different views, reports, and speculation being fed by numerous “sources”.

From CTV:

CTV's Ottawa Bureau Chief Robert Fife said the deal will be announced Friday at 8:00 a.m. EST. It will allow Canadian firms a chance at what's left of the $900 billion in stimulus spending that Washington announced last year.

Canadian firms will be exempted from "Buy American" restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

From The Vancouver Sun:

According to informed sources, the deal would grant Canadian exporters access to procurement markets in the 37 U.S. states covered under the World Trade Organization agreement on government tenders. Further, Canadian companies are freed from Buy American restrictions as they relate to funds remaining in seven programs under the stimulus legislation. In turn, the provinces would agree to open up their procurement markets, roughly valued at $22 billion.

However, sources say what U.S. companies can bid on will be limited, as certain sectors — such as health care, education and correctional facilities — are off limits. The two sides are said to have agreed to continue negotiations on a broader deal governing procurement.

While these stories suggest that this deal presents some measure of progress, whether Canada can take advantage of it now or as a basis for future Buy American-type programs, the CBC dropped a bombshell on The National tonight with their intel on the agreement.

According to the CBC’s report, this “agreement” isn’t really an agreement at all. Instead, Ottawa is signing a WTO agreement. Obama was quoted earlier on in this Buy American fiasco as suggesting that the Canadian provinces were not WTO signatories, and that becoming signatories would allow them to bid for the work. So if this is what the federal government has done then there really isn’t any compromise on the US side…Canada has just rolled over.

Worse yet, signing the WTO agreement means that we’ve now opened up provincial markets to more than 30 other markets that are part of the WTO! So now not only do Canadian firms need to compete against American ones, they also need to compete with firms from Britain, Germany, China, and Japan among others!

If what the CBC is reporting is true, then this has the potential to be a horrible deal for Canada: short term opportunities (if even that) and long term increased competition.

But again, we don’t have the actual deal in hand…these are all speculations from information fed by sources. Still, there’s enough here that we should be nervous about how much we’ve left on the table compared with the Americans…and the WTO countries which might be the biggest beneficiaries of all.

State of the Unions 2010 as it Relates to Border Issues

I found myself frustrated with the rhetoric coming from the 2010 State of the Union Address this past week. The United States, reeling from one of the worst recessions in history, has tried to shore up the borders, circle the wagons, and focus on improving their economy in a time when so many are struggling.

I have no problem with them doing that. I would expect, in the same situation, that Canada would do the same and that our government would protect our people.

But President Obama made some interesting statements regarding job creation and immigration. He stated in his address:

Third, we need to export more of our goods. Because the more products we make and sell to other countries, the more jobs we support right here in America. So tonight, we set a new goal: We will double our exports over the next five years, an increase that will support two million jobs in America. To help meet this goal, we're launching a National Export Initiative that will help farmers and small businesses increase their exports, and reform export controls consistent with national security.

This may be music to the ears of Americans, but it puts a more sour taste in the mouths of other countries…especially Canada which has been impacted by the recent “Buy American” programs and sentiment perpetrated by the US government. So not only has Obama closed the door to Canadian business, he wants to see countries like Canada take more of their exports (and we’ve seen already that Canada holds the #1 and #2 rank for export partner to the various states).

The other statement that I cringed at was…

And we should continue the work of fixing our broken immigration system -- to secure our borders and enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.

First of all…OUCH! The President said the immigration system is broken. That’s a strong statement to make. But its the part where he talks about ensuring that “everyone who plays by the rules can contribute to our economy and enrich our nation.”

If you’ve been reading this blog since the beginning, you know that this exists due to issues getting across to do some speaking. Since then, other incidents have popped up that highlight…well, that highlights the broken immigration system that the President referred to. But it also highlighted something else: that the current rules fly in the face of what Obama wishes for immigration. If a Canadian can’t speak at a conference not because he/she is getting paid but because attendees are paying to register, how are those established rules helping to “contribute to [the US] economy and enrich [the US]”?! That’s the problem, they don’t. And that’s the issue with these two statements, made at different stages of the address, but being opposed to each other nonetheless.

You can’t try and push exports through your borders and yet persist outdated immigration rules that are part of a broken immigration system (as Obama referred to it as). If President Obama is serious about immigration reform, specifically on the business and trade side, then there’s only one logical step: renegotiate NAFTA. Call Canada and Mexico to the table and talk about what needs to change, what improvements can be made, and how can we get North America back to being a power-house economical continent.

Until we get past protectionism though, that can’t happen.