Procedural Fairness Letter - Entry denial at US border

[ma5590]

Bringing this up if anyone else had any insight into my situation

 

[upon]

Thank you very much for your prompt reply. Yes, I do have screenshots of the FOIA requests along with I-94 Entry/Exits made at the US border. In the specific time the officer bought up the denial, my I-94 clearly states 'ARRIVAL' along with the border location but there is not mention of 'DEPARTURE'

@EscoBlades during your flagpoling did you enter the US officially? If not, do you have a 'DEPARTURE' stated on your I-94?

My lawyer is very adamant about asking for an extension since he wants to build a very solid case for the response. According to him 99% of the time extensions get approved. I have a call scheduled with him in an hour and will bring the extension topic up again. I will be asking why do they need the extension of time and what compelling argument will be made during the extended time that cannot be made now?

I am so sorry for your situation. This is so stupid I can’t find the right words.
Just want to ask what do you mean by -“ In the specific time the officer bought up the denial, my I-94 clearly states 'ARRIVAL' along with the border location but there is not mention of 'DEPARTURE'”.

so there is mentioning of the refusal somewhere?

 

[Anna Ngac]

Bringing this up if anyone else had any insight into my situation

I'm sorry to hear about your case.
My classmate did flagpole for PGWP and in her PR application, she answered "No" to the question about "denying entry" and she got her PR.
I, myself also went to the border to update my PGWP. At that time, I had a valid US visa but I did not enter US because my driver did not have US visa. In my I-94, I can see both arrival and departure Information for that flag pole day and I was thinking of answering No to my PR application as my classmate did.
After reading your post, now I am feeling worried

 

[upon]

I just checked online my travel history to the US and it shows only DEPARTURE only for my flagpole. I tried to check I94 but it shows no record.
How can it be possible?

 

[ma5590]

I am so sorry for your situation. This is so stupid I can’t find the right words.
Just want to ask what do you mean by -“ In the specific time the officer bought up the denial, my I-94 clearly states 'ARRIVAL' along with the border location but there is not mention of 'DEPARTURE'”.

so there is mentioning of the refusal somewhere?

When I check the Travel History section on the I-94 website online, it only shows 'ARRIVAL' the day I went for flagpoling, compared to my previous travel to the US (not for flagpoling) where it say's for 'ARRIVAL' and 'DEPARTURE'. It does NOT say denial of entry anywhere in the I-94 Travel History section.

 

[upon]

When I check the Travel History section on the I-94 website online, it only shows 'ARRIVAL' the day I went for flagpoling, compared to my previous travel to the US (not for flagpoling) where it say's for 'ARRIVAL' and 'DEPARTURE'. It does NOT say denial of entry anywhere in the I-94 Travel History section.

When I am checking the Travel History section on the I-94 website online, it only shows DEPARTURE for my flagpoling.
That is weird that for the same thing we have different entries.
I went to the US just once in my life for flagpoling so there is just one thing DEPARTURE on the online travel history.

 

[ma5590]

I'm sorry to hear about your case.
My classmate did flagpole for PGWP and in her PR application, she answered "No" to the question about "denying entry" and she got her PR.
I, myself also went to the border to update my PGWP. At that time, I had a valid US visa but I did not enter US because my driver did not have US visa. In my I-94, I can see both arrival and departure Information for that flag pole day and I was thinking of answering No to my PR application as my classmate did.
After reading your post, now I am feeling worried

Sometimes the officer might might overlook or forget to dig into past visa refusals and denial of entries. I have multiple friends who had visa refused to the US and they did not declare it in their PR application and still got approved. I would suggest say 'yes' and explain that is was for flagpoling for obtaining your work permit. Remember, the onus is on YOU to provide a complete application.

As in my situation, what I believe now happened was that even though I was told it was an 'administrative refusal' the CBP officer may have put in an actual denial of entry (which is ironic since I DID NOT seek entry to US). I told them at the border that I am doing flagpoling to obtain my PGWP at the Canadian Border.

Currently I am working with my lawyer to put a detailed explanation letter describing the entire situation.

 

[ma5590]

When I am checking the Travel History section on the I-94 website online, it only shows DEPARTURE for my flagpoling.
That is weird that for the same thing we have different entries.
I went to the US just once in my life for flagpoling so there is just one thing DEPARTURE on the online travel history.

That is indeed very weird, I would suggest if you are curious as to what happened exactly, file a FOIA application to CBP and request all the information on their system. This will provide you with all accurate information that you need and will also serve as backup documentation if you apply for anything in the future.

 

[Eric P]

I am really sorry for your experience. I wish the officer is just making a mistake here.

 

[Anna Ngac]

Sometimes the officer might might overlook or forget to dig into past visa refusals and denial of entries. I have multiple friends who had visa refused to the US and they did not declare it in their PR application and still got approved. I would suggest say 'yes' and explain that is was for flagpoling for obtaining your work permit. Remember, the onus is on YOU to provide a complete application.

As in my situation, what I believe now happened was that even though I was told it was an 'administrative refusal' the CBP officer may have put in an actual denial of entry (which is ironic since I DID NOT seek entry to US). I told them at the border that I am doing flagpoling to obtain my PGWP at the Canadian Border.

Currently I am working with my lawyer to put a detailed explanation letter describing the entire situation.

I even did not know that it was an "administrative refusal". The officer there did not tell me anything about administrative refusal or refusal. I told him that I wanted to do flagpole and then they asked me and my driver to go inside the building and give them our passport. They stamped my passport like normal visit (I've been to US many times). My driver even did not bring his passport with him and he's from country that requires US visa to entry US too. (last year he got PR and before that he did many flag pole trips, and he answered 'No' to the statutory question.
Do you remember the piece of paper that the US border officer gave you for flagpole? for me, there is even no name on that paper, only the car plate number of my driver, big "Flagpole" word in the middle of the paper and then above it is the phrase "allowed to withdraw".

 

[ma5590]

I even did not know that it was an "administrative refusal". The officer there did not tell me anything about administrative refusal or refusal. I told him that I wanted to do flagpole and then they asked me and my driver to go inside the building and give them our passport. They stamped my passport like normal visit (I've been to US many times). My driver even did not bring his passport with him and he's from country that requires US visa to entry US too. (last year he got PR and before that he did many flag pole trips, and he answered 'No' to the statutory question.
Do you remember the piece of paper that the US border officer gave you for flagpole? for me, there is even no name on that paper, only the car plate number of my driver, big "Flagpole" word in the middle of the paper and then above it is the phrase "allowed to withdraw".

I have been to the US previously (I have a valid B1/B2 visa) and those show up in my I-94 travel history similar to what is shown during my flagpoling.

The problem is, I have lost the piece of paper provided to me at the border. Although, I have requested a FOIA application to the US Customs and Border Protection to provide me with the following information: Records Regarding My Inspection of Examination Upon My Arrival at a US Port of Entry, Information Regarding Entry and Exit, Voluntary Return. Hopefully if I get that within time, I can show the IRCC officer those information.

I have talked a lot of folks who did flagpoling that said 'no' to that question and got their PR without any problems. Its very weird that this is happening to me. I said in my application 3 TIMES!! that I went to US that day to do flagpoling for my PGWP. Anyways, I'm hopeful that my lawyer can build a strong PFL response and allay his concerns.

 

[bigdan]

I have been to the US previously (I have a valid B1/B2 visa) and those show up in my I-94 travel history similar to what is shown during my flagpoling.

The problem is, I have lost the piece of paper provided to me at the border. Although, I have requested a FOIA application to the US Customs and Border Protection to provide me with the following information: Records Regarding My Inspection of Examination Upon My Arrival at a US Port of Entry, Information Regarding Entry and Exit, Voluntary Return. Hopefully if I get that within time, I can show the IRCC officer those information.

I have talked a lot of folks who did flagpoling that said 'no' to that question and got their PR without any problems. Its very weird that this is happening to me. I said in my application 3 TIMES!! that I went to US that day to do flagpoling for my PGWP. Anyways, I'm hopeful that my lawyer can build a strong PFL response and allay his concerns.

Hi what is your AOR date? Do you know what stage your application was before you received the PFL? Thank you!

 

[ma5590]

Hi what is your AOR date? Do you know what stage your application was before you received the PFL? Thank you!

AOR - February 10, 2021

It was in the eligibility stage

 

[bigdan]

Hi @legalfalcon, I have a question in regards to the situation that @ma5590 found themselves in. My AOR is Oct 21 and as of right now, my eligibility and criminality are passed. Security has not been started yet. I too did flagpole to get my PGWP and didn't disclose it as a refusal. I am worried I might receive a PFL request similar to @ma5590 when my security is being reviewed. Should I tell IRCC about the administrative refusal now? Or am I likely in the clear?

 

[legalfalcon]

Hi @legalfalcon, I have a question in regards to the situation that @ma5590 found themselves in. My AOR is Oct 21 and as of right now, my eligibility and criminality are passed. Security has not been started yet. I too did flagpole to get my PGWP and didn't disclose it as a refusal. I am worried I might receive a PFL request similar to @ma5590 when my security is being reviewed. Should I tell IRCC about the administrative refusal now? Or am I likely in the clear?

You have to understand two things:

1. Flagpoling is no legal word. It simple means going to the border and turning back without entering the US. When you went to the US border but turned around, you simply withdrew your application to enter, and thus there was no refusal. This is called administrative refusal, where the person withdraws their application to enter. An administrative refusal is you withdrawing your application to enter the US. It is not a visa denial and neither is it a refusal. Also, you were not fingerprinted, nor were you subject to admission examination.

A US visa refusal, even if it happens, has no impact on your Canadian PR, unless you committed a crime, an immigration fraud etc. Since you did not enter the US, you do not have to enter it in your travel history.

As regards disclosure, when you never filed an application to enter, and no determination was done, it is not a refusal. Eg. IF you file your application for Canadian PR, but then withdraw it, it is not refusal

However, if you fly to the US and are asked to turn back in the next flight, when you tray and cross land border, are stopped and asked to turn around, all these will count as refusals. Most applicants who flgpolling don't even have a US visa. They merely got to the border and turn around. Usually you can turn around before you reach the US border, but if in case you reach the border and inform the officer that you wish to turn around, it is merely withdrawing your application to enter.

2. All your visa refusals should be declared in your application, not doing so can lead to misrepresentation. As per law you have an obligation to be truthful. Section 16(1) of the IRPA states:

• 16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.

See Tuiran v. Canada (Citizenship and Immigration), 2018 FC 324 (CanLII), <http://canlii.ca/t/hr59k
Alalami v. Canada (Citizenship and Immigration), 2018 FC 328 (CanLII), <http://canlii.ca/t/hr6r1>