Several American immigration lawyers are calling for a review of all cases where Canadians were banned from entering the U.S. by former border officer Joel Helle, who pleaded guilty to harassing a Canadian last month.
Helle's record while he was a border official is coming under increased scrutiny.
"We believe each one of Mr. Helle's cases should be reviewed, because of his behaviour," said Duncan Millar, one of 26 lawyers who signed a letter to the director of the U.S. Customs and Border Protection's Seattle office, calling for a review.
Helle worked at Blaine, Wash., border crossings for several years. Last month, he pleaded guilty to harassment, for choking and threatening to kill a Canadian driver, while off duty, in a road rage incident. He has since left his job.
In 2009, Helle pepper-sprayed a Canadian who was trying to cross the border for not turning off his car on command.
"He seemed to revel in [his job]," said Millar. "He had a talent for getting people to admit they had stated a mistruth at the border. He was enthusiastic about it."
Bragged in court
In the harassment case, Helle bragged in court that he "generated thousands of adverse actions" against "aliens" at the border — more than any other border officer. He said that included banning some from the U.S. for five years.
"My question would be, were there cases where it wasn't warranted and he made it into a case so it would justify that kind of punishment?" said Millar.
The five-year bans are called "expedited removals." Border officials can ban non-citizens from the U.S. immediately, if they think the traveller is misrepresenting who he or she is or what they intend to do while in the country.
U.S. Customs officials confirmed the decisions are rarely overturned. There is no avenue for direct appeal in court.
Figures provided by the agency show 635 expedited removals were issued at Canada/U.S. land border crossings in 2010, down from 741 in 2009 and 856 in 2008.
Blaine by the numbers
There are four crossings to the U.S. in the Blaine area, third-busiest zone for Canada's cross-border land traffic:
- Peace Arch.
- Pacific Highway.
6,996,337 people arrived at the crossings in 2010.
86 per cent were Canadian citizens (6,016,849).
422 were refused admission in 2008-10 with expedited removals and a five-year ban.
55 expedited removals 2007-10 were initiated by one guard.
In that same three-year period, a total of 422 expedited removals were issued at the four Blaine-area crossings. U.S. Customs confirmed 55 were initiated by Helle in four years before he left his job. The Blaine crossings handle the third-largest amount of cross-border traffic, ranking behind New York State and the Detroit area.
"This last year we processed, just in the Blaine area alone, over six million Canadians coming into the country. Six million," said U.S. Customs official Mark Rowley, who supervises and approves expedited removals.
"It can be shocking for people [who are removed] but it's the totality of the circumstances. If we can determine through past travel histories, through past exams and such that they've committed fraud or misrepresented facts or taken up a residency in the United States then we can use this law," said Rowley.
Cases now under review
Rowley confirmed that, as a result of recent inquires, Helle's cases will now get a second look.
"Seattle field office will be reviewing those cases … because of this specific request," said Rowley.
"This is an extremely harsh, unreviewable method. I think if Canadians looked at the mechanism they would be shocked that you can't have anyone review this," said Millar. "The punishment doesn’t really fit the crime."
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John Smith of Vernon, B.C., claims he is a prime example of a Canadian singled out unfairly. Smith said he's retired, but he takes professional-level photographs and videos at international skydiving events.
Smith was headed to an Arizona skydiving event in 2009, when he was stopped at the Oroville, Wash., port of entry. He was interrogated for 11 hours and then banned for five years — suspected of trying to work illegally in the U.S.
"To me, it was just a game of intimidation — they wanted to shake me up," Smith said.
Smith said he eventually signed a paper admitting to misrepresenting why he was entering the U.S., but said he only did that so border officials would let him go home.
"I was interviewed off and on by seven different agents and some of them numerous times," said Smith.
"I haven't worked for a number of years in Canada because I'm retired and I certainly don't want to go down there and work."
Canadians should be exempt: lawyer
Millar believes expedited removals shouldn't even apply to Canadians. He said several lawyers agree that because Canadians don't require a visa to enter the U.S., they should be exempt.
"It says right in the regulations that it was not supposed to be applied to Canadian non-immigrants," said Millar.
However, Rowley said, under the law, all Canadians are considered to be "intending immigrants," until border officials are satisfied they are entering the U.S. as visitors.
"We are a welcoming nation," Rowley said. "There are certain circumstances [like intending to work]
, where Canadians are required visas."
Rowley would not talk about the Helle case, because it is a personnel matter and Helle is no longer with the agency.