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