Thursday, May 25, 2017

Despite Assurances from CBP National Leadership, CBP Adjudications of TN Registered Nurse Petitions Remain Problematic

During the course of a meeting with immigration lawyers on May 23, 2017 at the Peace Arch border crossing, CBP leadership there  announced that Blaine CBPO’s would continue to deny TN nurse status to otherwise qualified  APRNs (i.e. nurses who have met advanced educational and clinical practice requirements, and often provide services in community-based settings.

APRNs' services range from primary and preventive care to mental health to birthing to anesthesia).
See for problems APRN’s recently experienced in Detroit.

After the Detroit incidents, national CBP authorities issued a statement stating the agency performed a review and “deemed that those [nurses with] specialized degrees do fall under the TN status.” Thus the question arises, did national CBP authorities fail to notify CBP leadership at the Peace Arch as to  affirmation of longstanding CBP practice or has Peace Arch CBP gone rogue?

Friday, March 24, 2017

Can the leopard change its spots?

Conservative elements within US Customs and Border Protection (CBP) rank and file membership stationed on the US / Canada border have failed in efforts to redefine who may qualify as a Registered Nurse for NAFTA professional status. Before their efforts were thwarted, the autocrats threatened to disrupt health care delivery in a major US city, and left wounds at an unknown number of healthcare facilities throughout the nation.

Chapter 16 of NAFTA contains four provisions designed to enhance labor mobility between the NAFTA partners. One provision, the Trade NAFTA (TN) professional category, provides for cross-border mobility work for designated professionals. The NAFTA lists more than 60 approved professions as eligible for TN professional status, and all must have professional education and training. NAFTA professionals seeking entry to the US must document Canadian or Mexican citizenship, appropriate credentials, and an offer of professional employment from a US employer.

The NAFTA lists “Registered Nurse” as one of the qualifying TN professions. Due to an acute national shortage of highly trained nurses, healthcare institutions across the US rely on Canadian Registered Nurses to round out their staffing needs.

In early March, CBP stationed at a west coast port of entry denied TN Registered Nurse status to a highly qualified Nurse Practitioner bound for service at a premier west coast medical facility. By mid-month, what started as a single ill-advised TN denial had reached epidemic proportions, spreading as far as Detroit where perhaps 30 or more Registered Nurses bound for work at Henry Ford Hospital had their TNs pulled or denied. The effort to reinterpret NAFTA threatened to become a national plague.

The affected Registered Nurses had more advanced skill sets and performed more advanced level duties than entry level Registered Nurses; many were Nurse Practitioners, Nurse-Midwives, and Nurse Anesthetists who had served patients in the Detroit area for years. 

To justify its denials CBP said that the Registered Nurse profession under NAFTA did not cover these specialized nurses, because NAFTA, which requires nurses to have a degree in nursing and appropriate licensing, does not define who is a Registered Nurse. CBP’s reasoning ignored long standing US Department of Labor guidelines in effect at the time of NAFTA negotiation recognizing that the profession of Registered Nurse includes Nurse Practitioners, Nurse-Midwives, and Nurse Anesthetists.

CBP has taken a hard-line approach to insulate its restrictive adjudications of TN matters. It has advised its officers to ban TN applicants from the US if the inspecting officer does not believe the applicant to be eligible for TN status and the applicant declines to withdraw the application for admission. This means there is no formal process available for review of a TN denial by CBP.

Nevertheless, the denials shocked the health care community. As concern over CBP’s actions grew, CBP blamed its victims. It issued a statement attributing its denials to “improper paperwork presented by the traveller” and “lack of proper documents needed to grant a TN non-immigrant classification.” Individual CBP Officers also attributed the denials to the President, stating such denials were a new Trump policy.

International press coverage put the denials squarely before national CBP representatives, who reversed Detroit CBP decisions to deny the Nurse TN applications.  A statement was issued, stating the agency performed a review and “deemed that those [nurses with] specialized degrees do fall under the TN status.” The crisis was defused.

Excessively restrictive CBP adjudication of TN matters is common, but the aggrieved parties generally cannot harness the power of the press to secure a high level review of the denials. The specialized Registered Nurses denied TN status at Detroit are fortunate to have had both a major hospital and the statewide nurse’s union come to their assistance. In the meantime, it is unknown how many other specialized nurses bound for destinations other than Detroit were denied TN status and whether the decisions in those cases have been reversed.

Nursing is not the only profession to be affected by hostile TN adjudications; approvable matters across the full range of TN professions are denied every day.  Meanwhile conservative elements within CBP have mounted a systematic campaign to reverse a July 24, 2000 ruling indicating that the TN “Engineer” category should be broadly interpreted to allow those with bachelor’s degrees employed as “software engineers” to fit within its parameters.

It seems that the leopard cannot change its spots. 

Tuesday, March 31, 2015

Sovereignty concerns may scuttle the new Canada/USA preclearance agreement

Last month US Secretary of Homeland Security Jeh Johnson and Canadian Minister of Public Safety and Emergency Preparedness Steven Blaney signed the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of the United States of America and the Government of Canada (“the Agreement”).

The Agreement would allow for the immigration, customs and agriculture inspections required for entry to the US to occur in Canada and vice versa. It is billed as a cornerstone of the Beyond the Border Agreement that will reduce congestion and delays at the border and increase efficiency and predictability in cross-border travel, tourism and transportation.

Upon announcement of the Agreement, dozens of cross-border organizations issued rushed press releases, all praising the Agreement with many implying that they had played a crucial part in achieving the Agreement’s acceptance by the US and Canadian governments.

But the gains envisioned by the Agreement may well be illusory as both Canada and the US must enact sweeping legislation for it to be become operational. For the US part, the Agreement contemplates that Congress pass The Civilian Extraterritorial Jurisdiction Act (CEJA), a bill that has little chance of becoming law.

 - Jurisdictional no man's land -

At present, the US lacks jurisdiction to prosecute its civilian contractors and employees for a variety crimes committed beyond its physical boundaries. The Blackwater trial, in which four Blackwater guards under contract to the US government killed unarmed civilians in Iraq (an FBI report concluded that at least fourteen of the seventeen Iraqis killed in Baghdad’s Nisour Square by Blackwater personnel on September 16, 2007, were killed for no justifiable reason), brought this jurisdictional no-man’s land to light. CEJA would remedy this situation by explicitly extending US jurisdiction to specifically designated extraterritorial crimes committed abroad by US civilian contractors and employees.

CEJA was first introduced in Congress in 2007 with the latest version introduced in the last Congress, but none have become law. A CEJA bill has yet to be introduced in the current Congress, however it may be DOA; a right-leaning contingent of Congressional leaders opposes its passage. In a nutshell, the concern is that CEJA would put too many restraints on US intelligence agencies engaged in covert undertakings requiring illegal activity abroad.

While the Department of Homeland Security explicitly calls for US passage of CEJA or similar legislation, it is oddly silent about the specifics of legislation Canada must pass for the Agreement to become law. Sooner or later, the other shoe will drop - if the US is to assert jurisdiction over crimes committed by its Preclearance employees stationed in Canada, Canada must also exempt those employees from many of its own criminal laws. A Canadian government website hints at this when it states: “Generally speaking, the inspecting party would have primary jurisdiction over its Preclearance officers for offenses committed in the performance of official duties.”

Thus, among other demands on Canadian sovereignty, the Agreement contemplates the civilian equivalent of a military Status of Forces Agreement (SOFA) wherein a country cedes jurisdiction over foreign military forces stationed there to the country deploying the military forces. The US insists on a SOFA being in effect before stationing US troops abroad, be it in Afghanistan, Japan, South Korea or other countries, and it appears it will require similar treatment for Preclearance personnel stationed in Canada. While the explicit terms of the Agreement purport to exempt US Preclearance personnel from Canadian laws aimed specifically at law enforcement personnel by stipulating such Preclearance personnel will not be deemed law enforcement officers, it may take an act of Parliament to exempt US Preclearance personnel from Canadian laws by approving the civilian equivalent of a SOFA for US Preclearance personnel stationed in Canada.

These yet-to-be-addressed sovereignty concerns may well scuttle the Agreement, sending hopes of expanded US/Canada Preclearance operations back to the drawing board.

The cross-border community deserves better from the Beyond the Border process. Neither DC nor Ottawa have advised why CEJA and a related SOFA have become mandatory pre-requisites for the Agreement, nor have they been clear regarding other contemplated changes of law necessary to achieve widespread border Preclearance. One of the announced goals of the Beyond the Border dialogue is to bring more transparency to cross-border processes; meanwhile, its mediators remain tied to opaque negotiations.

Thursday, June 19, 2014

Watchdog says NEXUS enrollment processes need improvement

NEXUS expansion has been a major Beyond the Border  accomplishment.  However good NEXUS may be at present, a new government report says it can be improved.

In May, the U. S. Government Accountability Office (GAO) released a report entitled Trusted Travelers:  Programs Provide Benefits, but Enrollment Processes Could Be Strengthened. 

Often called the "congressional watchdog," the GAO is an independent, nonpartisan agency employed by Congress to investigate how the federal government spends taxpayer dollars.  In this capacity, the GAO reviewed CBP’s trusted traveler programs (SENTRI, NEXUS, FAST, and Global Entry) to determine the extent to which the programs have improved the facilitation of legitimate travel and trade, including the efficiency of the application processes and the potential impacts on security.  In particular, the report evaluated trends in enrollment and use of the programs over the past 5 years; the consistency and efficiently of applicant enrollment; and impacts of the trusted traveler programs for travelers and CBP.  The report contains several observations and recommendations regarding NEXUS that are summarized below.

In general, the GAO’s research revealed that trusted traveler entries into the United States increased, but varied by program.  SENTRI experienced the greatest increase in the total number of vehicles entering the United States, but NEXUS had the greatest growth in terms of percentage.  Likewise, enrollment in trusted traveler programs grew – more than quadrupling in the past 5 fiscal years.  Approximately 2.5 million people were enrolled as of January 2014, the majority of them in the Global Entry or NEXUS programs. 

The GAO found that application-vetting times varied wildly by program, with NEXUS and SENTRI applications taking the longest.  While CBP has implemented a few changes to expedite the process (for example, by automating background checks), in general it has failed to improve the efficiency of the enrollment process.  Of particular concern was the lack of performance targets; limited interview appointment availability at NEXUS and SENTRI enrollment centers; and lack of systematic data collection and review.  The GAO also found evidence of inconsistencies in enrollment centers’ interview processes, and differential rates of denial between enrollment centers.

Overall impacts of the trusted traveler programs included shorter average wait times for participants than regular traffic at border crossings.  At 15 of 18 crossings with NEXUS lanes, trusted traveler waits were roughly 15 minutes on average shorter than regular travelers in FY 2013.  CBP officers also spent significantly less time inspecting trusted travelers, with NEXUS inspections ranging from 23 seconds to 64 seconds that same year. According to CBP data, the four trusted traveler programs saved over 270,000 CBP officer hours at ports of entry in fiscal year 2013, allowing CBP to focus more resources on travelers they know less about. GAO’s analysis of CBP data also indicated that trusted travelers in fact commit fewer border violations than regular travelers.

To view GAO’s full report, go here: LINK  

Sunday, February 2, 2014

Chipping Away at Expedited Removal: Ninth Circuit Finds A Limited Review Exists for Expedited Removal Orders

PACE, the BC Chamber of Commerce and the Bellingham Chamber of Commerce have targeted the U.S. expedited removal laws because of their chilling effect on cross-border trade and commerce. The organizations are working to change expedited removal through the courts and through the Congress. The organizations filed an Amicus Brief in a expedited removal case that was subject to A recent U.S. Court of Appeals decision. The following commentary is provided by Attorney Robert Pauw of the Seattle law firm of Gibbs, Houston, Pauw. Mr. Pauw represented Plaintiff Smith in the case.

Ninth Circuit Finds Limited Review for Expedited Removal Orders

           In a recent decision, the Ninth Circuit concluded that there is jurisdiction to review the merits of a challenge to an “expedited removal order”.  Smith v. CBP, ___ F.3d ____, 2014 WL 91915 (Jan, 9, 2014).  Although the court ultimately rejected the petitioner’s merits argument, the case opens the door to future challenges by other individuals with different facts.

  Under the “expedited removal” process, 8 U.S.C. §1225(b)(1)(A), an immigration officer at the border can issue an expedited order of removal against certain noncitizens applying  to enter.   This can be done immediately, while the person is at the border, and is completely at the discretion of the immigration officer if the officer believes that the person has made a false statement or does not have the proper immigration documents.  The applicant is turned away and is also banished from coming back to the United States for five years. 

             Even where the CBP officer acts in an arbitrary or abusive manner, the statute seems to preclude any judicial oversight.  According to 8 U.S.C. §1252(e)(2), there is no judicial review of the CBP’s expedited removal order except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.  As one court noted:

 The entire process… can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards.  … [T]his procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States).  … [Nevertheless, we] must align ourselves with the courts that have considered the issue and hold that we lack jurisdiction to inquire whether the expedited removal procedure to which the Khans were subjected was properly invoked. Khan v. Holder, 608 F.3d 325, 329, 330 (7th Cir. 2010).

             Under the statute and the governing regulations, CBP is authorized to invoke the expedited removal process only in certain situations.  The statute precludes its use against noncitizens who are not “arriving in the United States”, as well as against citizens of Cuba who arrive by aircraft (“flying Cubans”).  8 U.S.C. §1225(b)(1)(A).  The regulations preclude its application to individuals “for whom documentary requirements are waived” – which includes Canadian citizens who seek to enter the United States as visitors.  See 8 C.F.R. §212.1(a)(1).  Thus, there is an initial threshold question whether CBP actually has the legal authority to issue the expedited removal order against a particular person in the first place.[1] 

             Prior case law suggested that federal courts have no jurisdiction to consider the threshold question of whether CBP exceeded its statutory and regulatory authority in issuing an expedited removal order.  See, e.g. Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001), vacated as moot, 324 F.3d 1109 (9th Cir. 2003), cited favorably by Garcia de Rincon v. DHS, 539 F.3d 1133, 1141, n. 4 (9th Cir. 2008) (courts may not “inquire into whether section 1225(b)(1) was properly invoked”); Khan, 608 F.3d at 330 (“we lack jurisdiction to inquire whether the expedited removal procedure to which the [plaintiffs] were subjected was properly invoked”).   In Smith v. CBP, the Ninth Circuit rejected this suggestion and held that the court does in fact have jurisdiction to consider the threshold question:  “we agree with Smith that there is limited jurisdiction to consider his case under §1252(e)(2)(B).”  For example, if a person argued that he was not subject to expedited removal because he was a “flying Cuban”, the court would have jurisdiction to determine that issue.

             In Smith v. CBP, Smith argued that as a Canadian citizen he was not subject to expedited removal because he was entitled to the exception established in 8 C.F.R. §235.3(b)(2)(i) (expedited removal does not apply to individuals “for whom documentary requirements are waived”).  The court explained:

 Certain Canadian citizens who have established their nonimmigrant status are exempt from the documentary requirements to which other arriving aliens are subject, see 8 C.F.R. § 212.1(a), and are, in turn, not subject to the expedited removal statute. 8 C.F.R. § 235.3(b)(2)(i). But these exceptions apply only to nonimmigrants. See 8 C.F.R. § 212.1 (listing “Documentary Requirements for Nonimmigrants”).

 2014 WL 91915, at *4.  Thus, the threshold question that the court entertained was whether Smith had established a bona fide or non-frivolous claim to nonimmigrant status.[2] 

             On the facts of the case, the court rejected Smith’s claim.  The court noted that when Smith attempted to enter the U.S., he carried photographic equipment, flyers advertising work, and large quantities of cash, and he made false statements concerning the amount of cash that he had, all of which indicated that he might be running a photography business in the United States.  Thus, the court held, Smith did not have a legitimate claim to being a person “for whom documentary requirements are waived.” 

             However, the court made it clear that it was limiting its decision to the facts of this particular case. 

 This opinion is limited to the specific circumstances of Smith's presentation at the border ….  We do not opine on the circumstances of Canadians who fall in the nonimmigrant categories and are exempt from documentary requirements, see 8 C.F.R. §212. 1, or on other circumstances involving Canadians seeking to enter the United States.

 2014 WL 91915, n. 5.  Thus, the court leaves for another day the parameters of its review of an expedited removal order against a Canadian citizen who has a bona fide or non-frivolous claim to being a visitor.            

[1] If CBP does not have the legal authority to issue an expedited removal order against a noncitizen, that does not necessarily mean that the noncitizen is entitled to be admitted to the United States.  Rather, CBP must decide whether or not the person should be allowed to enter the United States – i.e. decide whether any of the inadmissibility grounds (listed in 8 U.S.C. §1182(a)) applies to the noncitizen.  If the CBP officer decides that the person is not admissible, then the noncitizen can request review of that decision at a court hearing before an immigration judge.  8 U.S.C. §125(b)(2). 
[2] The court pointed out that it was not reviewing “whether the alien is actually inadmissible or entitled to any relief from removal.”  The court has no jurisdiction to review that question.  See 8 U.S.C. §1252(e)(5). Rather, it was reviewing only the threshold question whether Smith was eligible for the exemption from documentary requirements.

Wednesday, January 1, 2014

US Customs and Border Protection Provides Guidelines for After-Lease Service

Through use of the Freedom of Information Act (FOIA), PACE has obtained documents produced by the US Customs and Border Protection (CBP) Office of Field Operations providing guidance related to after-lease service agreements. This guidance is one of the "deliverables" promised under the Beyond the Border Agreement.

A CBP Memorandum dated February 22, 2013, instructs CBP Field Operations Directors that policies regarding admission to provide after-sales service also extend to admission to provide after-lease service. 

The Memorandum directs that applicants “seeking admission into the U.S. to provide services to commercial or industrial equipment, machinery or computer software, that has been leased from an enterprise located outside the United States, should be processed under 8 CFR 214.2(b) as B-1 visitors for temporary business.” Such applicants “should be able to establish the terms of the lease agreement between a foreign entity and a U.S. based entity, including that the lease calls for service during the period of the lease.”

A copy of the Memorandum and other information relevant to the FOIA is available here.

Individuals applying for admission in order to provide after-lease service are held to the same general criteria as all B-1 visitors, including employment status with a foreign entity; a foreign residence they do not intend to abandon; their principal place of business and place of remuneration in a foreign country; their visit for business is temporary in nature; and an understanding that the nature of the business does not include ordinary labor for hire. A detailed article about B-1 visitors is available here.

Tuesday, September 3, 2013

PACE & other regional economic development organizations file amicus brief in push back against expedited removal

The BC Chamber of Commerce, the Bellingham/Whatcom Chamber of Commerce, the Northwest Economic Council and Pacific Corridor Enterprise Council (PACE) have joined together to file an "amicus brief"  in a case pending before a U.S. appeals court (the U.S. 9th Circuit Court of Appeals). That case concerns the issue of whether a Canadian citizen seeking entry to the U.S. can be subject to expedited removal by U.S. Customs and Border Protection (CBP).

Currently, British Columbians heading to the U.S. for business or tourism purposes face a border regime that empowers border guards, at their own discretion and without avenue for appeal, to bar Canadians entry to the U.S. for periods of five years or more under an “expedited removal” process.

“This draconian regime flies in the face of open borders and Canada’s long-standing friendship and trading relationship with our neighbours to the south,” said John Winter, President and CEO of the BC Chamber of Commerce. “As our countries strive towards new levels of co-operation through the Beyond the Border Action Plan, these harsh border rules need to be fixed.”

Winter added that the border rules pose a particular threat to B.C. businesses.

“If an overzealous U.S. border guard targets a B.C. CEO or other key company personnel for expedited removal, that company’s business with the U.S. risks grinding to a halt,” Winter said.

An amicus brief is a legal vehicle that allows parties who are not parties to a specific legal action to provide the court with additional information pertaining to the case that is before the courts.

Recent border situations in the Pacific Northwest where Canadians have been placed into expedited removal have involved Canadians seeking entry to the U.S. to attend meetings, visit vacation homes or engage in other travel into the United States.

Greg Boos is the Bellingham-based immigration attorney who authored the amicus brief.

“Allowing CBP to make unreviewable determinations of admissibility into the U.S. invites abuse of discretion,” Boos said.