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U.S. BORDER CRACKDOWN KEEPING CANADIANS OUT

Some Barred 5 Years Or Fined On The Spot

James Horner, a 39-year-old Torontonian accepted into a chiropractic school in San Jose, Calif., packed up his minivan and headed for the Sarnia - Port Huron border crossing last October. He never made it through. A U.S. immigration inspector did not believe his story and judged his documents from the Palmer College of Chiropractic West insufficient.

"They held me for five hours, repeatedly saying, ‘You’re a goddamn liar, you’re a goddamn liar.’ It was as if they were trying to behave like television cops."

Then Mr. Horner was banned for five years from the United States, with no right of appeal.

His story is not unique. At the world’s longest undefended border, Canadians are running into a new barrier set up by Congress. Under a tough new law that took effect last April, immigration inspectors must impose a five-year ban on people they judge to be misrepresenting the reasons for their visit.

Hundreds of Canadians have been subject to the ban. At the Buffalo border crossing alone, 300 people, of whom probably 100 are Canadian citizens, were ordered banned between April and October, according to Winston Barrus, deputy director of the Buffalo district Immigration and Naturalization Service. (In all, 23,064 people were hit with the five-year ban in its first six months, most at the Mexican border.)

But if Canadians are getting into trouble as perceived liars, they also appear to be encountering some problems for telling the truth. At preflight inspections by U.S. officials in Calgary, some Canadians are being asked whether they have ever used marijuana—and if they say yes, they are barred indefinitely from the United States, according to Calgary lawyer Michael Greene.

This week Mr. Greene, who specializes in immigration, was called by a 25-year-old woman who said she was barred after admitting to having tried marijuana when she was 19.

In another case, U.S. immigration officials alleging to have found what Mr. Greene calls a "crumb" of marijuana in the cap of a 30-year-old Canadian student told the man that if he paid them $500 cash and signed a document admitting to lying to border officials, he would not face a fine of $5,000 for attempted drug smuggling. A customs official escorted the Canadian through the airport concourse to a bank machine where he withdrew the cash, then to a currency-exchange counter so it could be converted into U.S. dollars, Mr. Greene said. (The student is now barred indefinitely from the United States.)

Kevin Cummings, program manager for the U.S. Customs Service’s passenger operations, said his country’s authorities do not want people bringing drugs with them. Speaking in general about such incidents, he said: "They want to ensure that once he walks out the door, he doesn’t just go away. He’s attempted to make entry to the United States. He’s not free to go."

And if he refused to sign the document? "They would probably have turned him over to the Canadians and let the Canadians criminally prosecute him, I assume. I don’t know what the alternatives would be."

Sean Rowan, a spokesman for the Canadian Foreign Affairs Department, was unequivocal about U.S. powers of detention in Canadian airports: There are none. "The American preclearance officials do not have the right to detain anybody at a Canadian airport. No detention is allowed." "It’s amazing. It makes my hair rise," said Mr. Greene, who is national secretary of the Canadian Bar Association’s immigration and citizenship section. "There’s no way our police could ever pull this off. Our customs people could never pull it off. If Canadians were doing this to Americans, we’d probably have an international incident on our hands."

How widespread are these incidents? Michael Davis, an immigration lawyer in Minneapolis who often handles Canadian matters (Mr. Greene refers people to him), said he has heard of several such episodes, but only from Calgary.

"Under the zero-tolerance laws, let’s say they find a microscopic speck of something. The government believes that’s enough to exclude somebody."

Mr. Greene said that in the past few weeks he has received several calls from individuals who said they have been barred from the United States for admitting to past marijuana use. Suspicion was aroused by a drug-sniffing dog employed by the Americans, by the traveller’s appearance or by information in computer records.

A 44-year-old Calgary businessman, who owns a film and television production company, said in an interview that a drug-sniffing dog singled him out on Jan. 6, 1997. Under questioning he admitted to having smoked marijuana while in school decades earlier, and was told he was barred indefinitely.

The U.S. official gave him a form to fill out if he wishes to gain entry. It requires a letter from the RCMP that he has no criminal record; for that he must have his fingerprints taken. Also, he must answer whether he or any members of his family have ever been members of the Communist Party, he said.

"It’s just wild. Remnants of the fifties McCarthyism are still around."

(He did not want his name used because he was afraid the publicity would hurt his chances for permission to enter the United States.)

The five-year ban, part of the "expedited removal" provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, was designed to stem illegal immigration, especially from Mexico.

Before it took effect, people barred from the country by border officials could obtain a hearing before a judge. But immigration officials could do little about people who lied to them or presented false documents, said Russ Bergeron, a spokesman for the Immigration and Naturalization Service in Washington.

The officials had two options. They could place the individuals in formal deportation proceedings, but those would last four to six months and would mean detaining tens of thousands of people each year; or they could allow the individuals to withdraw their applications and go home. But those people could then simply try another border crossing until they succeeded, he said. "There was no punitive or deterrence factor."

Although appeals to the courts now are not allowed, "there is a review process," Mr. Bergeron said. An initial inspector flags concerns for a second inspector, who interviews the subject and decides whether to impose the ban. That decision is reviewed by a supervisor.

But critics say low-level immigration officials act as prosecutor, court reporter and judge, that questioning occurs without a meaningful chance to respond to allegations, and that the punishment is too strong for the crime. Those held for questioning have scant rights while in detention and may be held several hours without food or access to a washroom, and there is no right to see a lawyer, family or friends, says the American Immigration Law Foundation in Washington.

The foundation is challenging the law in Federal District Court on behalf of 18 U.S. aliens, including four Canadian citizens. One of the Canadians, Steven Williamson of Oakville, Ont., said that when he wrote in an affidavit that he had been denied counsel, an immigration officer ripped the paper, threw it at him, began swearing, took off his jacket and touched his gun. Mr. Williamson said he became afraid and decided to be more compliant. He was barred for five years for allegedly misrepresenting his reason for entering the United States.

"From our perspective it’s killing a fly with a cannon," Joel Guberman, a Toronto lawyer who specializes in U.S. immigration, said of the five-year penalty.

He travelled to Washington last month to press the U.S. government for changes to the law. Although no appeals to courts are possible, Mr. Guberman managed to persuade a group of officials monitoring expedited removal to overturn the five-year ban on Mr. Horner, the prospective chiropractic student.

In October, while waiting to receive his student visa, Mr. Horner headed south, hoping to find lodgings and visit relatives, he said. His plan was to spend a month, then return to Canada and pick up his visa. But a U.S. immigration official accused him of having no intention of studying. She said his minivan was packed so full he must be planning to set up a life in the United States.

"There were other inspectors coming by and applauding her, saying, ‘Good work, Marianne,’ " Mr. Horner said. "At one point she yelled across the room to one of the other inspectors, ‘I’ve got one.’ They were sort of clapping each other on the back."

In one case cited by Mr. Guberman to the U.S. government, a Canadian employee of a large U.S. subsidiary in Canada was travelling to the United States to train workers and visit friends. She told border officials only that she was visiting friends, and did not mention the business purpose until she was questioned further. She was then barred for five years.

"Business people are fond of the little white lie. ‘I’m just going down for the weekend.’ They want to avoid scrutiny. It’s almost a cultural icon for Canadians," Mr. Guberman said. But he asked, "Should a misrepresentation bar an individual when the truth would not?"

The Canadian government has decided not to oppose the five-year ban, even though the law does not provide for judicial review, because Canadian immigration authorities themselves can issue exclusion orders from which there is no right of review, according to a press spokesman at the Canadian embassy in Washington. (In some circumstances they can bar people for a year—for instance, if a person shows up without a required visa and insists on being allowed in, the spokesman said.)

"One of the great misconceptions for the public is that lying at a border where we cross regularly back and forth has no consequences," the embassy spokesman said. "We are trying to remind people that when you talk to a border official, the best thing you can do is to tell the truth." (Ed. note:????????????)