Right to appeal an exclusion order?

[Yoshi]

My fiance has been visiting me in Canada for about ten weeks, which we have explained to the CBSA numerous times as we cross the border on a regular basis, either to travel back to her (rented) house in the United States, or to do weekly shopping excursions, etc. (She is an American Citizen, I am a Canadian, we have both traveled the world without any past problems, neither of us have criminal records, etc)

Today, while returning from a routine shopping trip, she was challenged by CBSA whether she really intends to leave the country on December 20th - and she gave them her plane ticket, and explained that she'd crossed the border fifty times over the last five years without any issue - never overstaying the six month limit in a twelve-month period.

Long story short, CBSA agent was pissy for some reason or another, declared she was banning my fiancee from returning to Canada for a year. When pressed for a reason, all she would say is that "it is my belief she is currently residing in Canada and does not possess Permenant Residency, therefore she is barred from further entry". This is ridiculous since;

a) She is still within the number of weeks she explained she was visiting for, and CBSA allowed her into the country last week following her month back at her American house, based on her December 20th plane ticket back to the US. (She has spent less than three months, of the last twelve, in Canada)

b) She CAN'T apply for Permanent Residency at this point, as she is only my fiance she is not ELIGIBLE for PR - she is entering as a "temporary visitor" for ten weeks, then we are travelling down to the United States for the wedding, AFTER which she intends to apply for PR before returning to Canada.

Neither of these seemed to matter to the CBSA agent, who was definitely just acting out misdirected rage against us...I am filing a complaint with the border post's supervising officer for the wildly inappropriate and unprofessional way in which my fiancee was handled...but I am seeking information on whether there is a process for appealing the Exclusion Order (when I asked the agent she got angry and informed me that her decision was final, there were no appeals) against a temporary visitor.

I notice the IRB Appeals Division website seems to mention it handles appeals from "permanent residents denied entry", it doesn't make any mention of temporary visitors issued a one-year ban from entering Canada by an overzealous CBSA agent with no grounds whatsoever.

So now my near-future life has been ruined by one person's "bad day", an ordinary grocery shopping trip turned into a nightmare that has my fiancee banned from entering Canada based on the spurious allegation that she would have required Permanent Residency to spend three months in Canada.

So yeah...how/can we proceed with an appeal?

 

[Baloo]

The problem is that visitors have no "right" to enter Canada, they are allowed to do so by an IO.
Sadly, being "allowed in" on one occasion does not mean an IO will continue to do so.

How many times has your fiancée visited you during the time you have been together?

 

[Yoshi]

I understand she doesn't have a right to enter, but I feel she likely does have a right not to be unfairly barred...it's the exclusion order that gets my goat...if they'd just turned her back and told her she's spending too much time, or needs more money, or whatever to enter it's understandable (well, not really, but moreso) - but this was a flatout "I am gonna ban you from entering again" based on what you'll have to take my word, was zero evidence.

She visited in mid-September for six weeks, was admitted based on the fact she had a plane ticket back to the United States dated for November 1 - and left as promised. (we did cross the border to go shopping once a week during her visit)

Three weeks after that, one week ago today, she returned to visit, this time for four weeks, again with a plane ticket in-hand for leaving and spending another month down in the United States for December/January. Again they let her in (knowing we were engaged, etc) for four weeks - two days after she was let in, we went shopping in the United States, again no problems crossing either direction (honestly, we know the guards' faces by now) and then yesterday we crossed again to do some more shopping (these are $20 trips to Wal-Mart, nothing big) and when we hit the Canadian border it...well, the sh*t hit the fan and they announced "she would have to come inside", so we parked and went in, and they informed us they were obtaining an exclusion order to ban her from entering Canada for one year.

 

[scylla]

Yoshi,

I can't offer any real advice now that this has happened to you. Hopefully others can. Good luck!!!

However I have to say that I lived in fear that this would happen to my husband during the five years he visited from the US frequently. Unfortunately visitors really truly have zero "rights" at the border. This is why border crossings always stressed me out so much (I think I almost made myself sick when my husband was crossing into Canada for our wedding). I had also read enough stories on message boards such as this one to know that Americans can and do get refused and/or banned at the border for what most of us would say is "no reason". Fortunately my husband is now a PR so this is no longer an issue. He probably entered and exited Canada 10-20 times per year during the five year period before he became a PR. I strongly believe his nexus card is the primary reason he was able to do this so easily.

Anyway, my heart goes out to you.

I know that you can't go back in time and do things differently. However in case anyone else reads this who is in a similar situation (crosses frequently) but hasn't been hit with an exclusion yet, my recommendations are as follows: (1) if you do nothing else, get a nexus card immediately; (2) act like a visitor and don't travel with lots of stuff [look like you're visiting, not moving]; (3) don't volunteer information, only answer what you are asked [e.g. I don't know if you volunteered the "50 trips in the last five years" bit or if you were specifically asked how many times your fiance had entered Canada in the last five years, I definitely wouldn't have volunteered that info because it just gives the agent more cause to refuse or ban since 10 trips a year doesn't sound like typical "visitor" behaviour]; (4) have a departure date and proof [e.g. airline ticket]; (5) carry proof of your strong ties to the US (e.g. employment slips, mortgage, rental agreements, etc.) (6) don't make unnecessary trips across the border [my recommendation would have been to absolutely avoid the cross-border shopping trips]; (7) if you get pulled for secondary inspection, be very careful how hard you try to argue your case [far better to be refused than banned].

Again, I'm very sorry this happened to you. I can't even begin to imagine how much it must suck. Good luck again... Hope someone can give you some good advice on next steps...

 

[Baloo]

"A right to be unfairly barred" well, disappointing as it is, I doubt that any of us have that right either.
I know a few people who have been banned (mostly business travellers), but I have never seen the option to appeal.


The CIC web site says:

Can a potential host in Canada or an applicant outside Canada appeal the decision on a temporary resident visa application?

Under Canada’s Immigration and Refugee Protection Act, there is no formal right of appeal on temporary resident visa decisions. Rather, the applicant may reapply and, whenever possible, a different visa officer will examine the application.

An applicant may also seek leave through the Federal Court of Canada to request a judicial review of any decision made by a visa officer, if he or she believes that the process was not legally or procedurally fair. A lawyer in Canada would have to act on behalf of the applicant.

http://www.cic.gc.ca/english/resources/publications/temp-resident-visa.asp


The fact is that since mid September through to December she has been in (or plans to be in) Canada for about three months, this amount of time should not be a problem.
The hard part is that the shopping trips may be the thing that the officer looked at. Every time you attempt entry at the border it is a gamble, there are lots of people who never have a problem, but many do.

Did you read the conditions of entry as a visitor, does your fiancee meet all the conditions, a job, ties to the US, etc.

It may sound like a crazy question but is she actually living in Canada with you or just visiting?

What was the actual banning process?
What documentation was provided to your fiancee?

 

[Yoshi]

She maintained her leased house, with all furniture and amenities, in the United States - she really was just visiting, not living in Canada. She visited for a day or two at a time through the year, up until September, when she made it clear she was going to visit for 3-4 months, with 2-3 months interspersed back at her own house. When we offered job, housing and personal references to the CBSA agent, we were told they weren't interested. I assume the same would have held true if we'd offered her phone bills and other proof of ties to the US.

In hindsight, now we know weekly shopping trips were unwise - but in our defence, it seemed like the more frequently they saw you passing through the border, the LESS concern they'd have about your intentions. It may be true, but apparently just one CBSA agent having a bad day can screw things up irrevocably.

The CBSA website (not Immigration website) says they HAVE an appeals program, but offers little to no information on it.

 

[Baloo]

... but apparently just one CBSA agent having a bad day can screw things up irrevocably.

Sad but true.

You mentioned "banned" and "exclusion order" - Was your fiancee refused entry, or issued a section 44, or some other action taken?

 

[Yoshi]

Issued an A44 Exclusion Order barring her from entry to Canada for one year.

 

[Baloo]

Normally an IO offers the person the option to withdraw their application to enter, then they can try another time.
A section 44 seems a bit brutal, I guess the conversation became heated huh?

I am unsure if this document is useful, it is about writing section 44 reports.
http://www.cic.gc.ca/english/resources/manuals/enf/enf05-eng.pdf

 

[Yoshi]

It actually didn't become heated at all, we were asked to come inside, and were immediately told that they were seeking an A44 Exclusion Order barring her from the country, as she sobbed on a chair, I asked why they were unable to simply deny entry or demand a cash deposit to ensure her December 20th departure date, they informed me that this was the first time they'd ever issued an exclusion order, that their word was final and there was no appeals system. It honestly wasn't a fracas or heated exchange at all...I think it was incompetence (and an error of law) mixed with a CBSA agent having a "bad day" and taking it out on the next pair to come through.

But IRB indicates they only hear appeals on permanent residency, not temporary visitors - and nobody seems to say they handle appeals on exclusion orders...which seems odd, there must be SOME recourse...you can't have a CBSA agent bar someone from the country for a year without reason, and you certainly can't have them do it against protocol and regulations under an error of law...I'm confident that an appeal would be quickly successful (admitting this is your first time handling an exclusion wasn't a particularly wise choice of the agent), I'm just trying to find the avenue towards launching that appeal since IRB seems confident they don't handle A44s against temporary visitors.

 

[Baloo]

Sounds like a lawyer is needed.

Sorry, I don't have any better options, good luck.

 

[Yoshi]

Living in a small rural community, a lawyer is not easily found - but do you mean an American lawyer or a Canadian lawyer?

 

[scylla]

Canadian lawyer.

Good luck...

 

[Baloo]

Canadian lawyer.

Good luck...

100% correct

 

[Yoshi]

The PDF is useful, I'm going to print it out and highlight relevant portions and bring it with me when I approach the local lawyer (who has no immigration experience), other than a copy of the A44 and the typed description of events by both my fiance and I, is there anything else I should be bringing? And I assume any Canadian lawyer CAN handle the case, it's just 'recommended' that it be an 'immigration lawyer' (because I'm definitely not finding one of those around here)