US CBP - above the law?

[aphid 0]

A series of two articles appeared recently in the Vancouver Sun newspaper detailing issues more Canadians are encountering with US Customs and Border Protection and the lack of judicial oversight to CBP's alleged unlawful conduct.

Article 1: http://www.vancouversun.com/Five+year+prompts+sell+home/4745766/story.html


"North Vancouver man to sell Point Roberts cottage after being banned from entering U.S. Couple fed up with difficulties with border guard say they won't be returning to Point Roberts."

Article 2: http://www.vancouversun.com/news/Banished+border/4784413/story.html

"Travelling from Canada to the U.S. used to be easy. That's not always the case any more, with an increasing number of Canadians ensnared in customs hassles after 9/11."

Most disconcerting might be the comments of the Court in rendering a decision from a federal case challenging CBP's conduct:

"The troubling reality of the expedited removal procedure is that a CBP officer can create the ... charge by deciding to convert the person's status from a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same officer, free from the risk of judicial oversight, can confirm his or her suspicions of the person's intentions and find the person guilty of that charge.

The entire process, from the initial decision to convert the person's status to removal, can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. To say that this procedure is fraught with risk of arbitrary, mistaken, or discriminatory behaviour -suppose a particular CBP officer decides that enough visitors from Africa have already entered the U.S. -is not, however, to say that courts are free to disregard jurisdictional limitations."

(To avoid confusion or any discussion falling prey to semantics - Canada is a visa-exempt nation. Visa's are not required to enter the USA, just a valid passport. And according to the Act of Congress authorizing Expedited Removal's, suspicion - even proof - of working in the US illegally is not grounds for that penalty.)

[popsjumper 2]

Well, maybe the Canadians will stand up and fight these bozos...U.S. citizens sure aren't going to do it.

My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

[freethefly 6]

U.S. border patrol has always been a major pain in the ass. Years ago, after finishing a test on the Canadian Pacific Railroad, i got held by the U.S. BP for several hours while they went through my belongings. They had everything scattered on the floor. I missed my flight and had to re-book another. Cost me a full day.
A few years later, after finishing a test on Conrail into Niagara Falls, we decided to go over to visit the Canadian side to get night shots of the falls. One of my crew had his conversion van. Getting into Canada was no problem. Crossing back into the U.S., we were held until the early morning hours while the U.S. BP rip the mans van apart. I mean, they ripped the panels out, the seats out, flatten his tires... they destroyed his van looking for drugs. A few months later, testing C.P. rail in Maine, we had to cross into Canada for the tie-in so the rail test car in Canada can pick up the test on that side. We had our paper work in-line for the movement into Canada and then run in reverse back into the U.S.. We only moved 3 rail lengths into Canada. The Canadians were great about it. The U.S, BP held us up for the remainder of the day while they searched the rail car with dogs. The test across the border lasted for about 10 minutes. We never even stepped off of the rail car.
When I finished a 7 month long test of the FNM in Mexico. We got held for a day by the U.S. BP at Ciudad Juarez/El Paso while they tore everything apart and searched our belongings for drugs. Again they brought on dogs. Cost us a day of lost time. 7 months before, we entered Mexico at Laredo/Nuevo Laredo. The Mexicans were good to us just like the Canadians were. U.S. BP seems to be boot stomping assholes. They always treated us as if we were criminal. Coming on board with assault rifles and dogs is just bullshit. Always a major pain.

"...And once you're gone, you can't come back
When you're out of the blue and into the black."
Neil Young

[Andy9o8 2]

It's all about balance: to let all the extra Mexicans in, we have to keep all the extra Canadians out.

[aphid 0]

I thought as a practicing lawyer, you and others might be taken aback at the (apparent) unconstitutional protection shielding them from judicial oversight.

[wsd 0]

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U.S. border patrol has always been a major pain in the ass. Years ago, after finishing a test on the Canadian Pacific Railroad, i got held by the U.S. BP for several hours while they went through my belongings. They had everything scattered on the floor. I missed my flight and had to re-book another. Cost me a full day.
A few years later, after finishing a test on Conrail into Niagara Falls, we decided to go over to visit the Canadian side to get night shots of the falls. One of my crew had his conversion van. Getting into Canada was no problem. Crossing back into the U.S., we were held until the early morning hours while the U.S. BP rip the mans van apart. I mean, they ripped the panels out, the seats out, flatten his tires... they destroyed his van looking for drugs. A few months later, testing C.P. rail in Maine, we had to cross into Canada for the tie-in so the rail test car in Canada can pick up the test on that side. We had our paper work in-line for the movement into Canada and then run in reverse back into the U.S.. We only moved 3 rail lengths into Canada. The Canadians were great about it. The U.S, BP held us up for the remainder of the day while they searched the rail car with dogs. The test across the border lasted for about 10 minutes. We never even stepped off of the rail car.
When I finished a 7 month long test of the FNM in Mexico. We got held for a day by the U.S. BP at Ciudad Juarez/El Paso while they tore everything apart and searched our belongings for drugs. Again they brought on dogs. Cost us a day of lost time. 7 months before, we entered Mexico at Laredo/Nuevo Laredo. The Mexicans were good to us just like the Canadians were. U.S. BP seems to be boot stomping assholes. They always treated us as if we were criminal. Coming on board with assault rifles and dogs is just bullshit. Always a major pain.

Perhaps it was due to you being a known associate of criminals?

[Andy9o8 2]

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I thought as a practicing lawyer, you and others might be taken aback at the (apparent) unconstitutional protection shielding them from judicial oversight.

What makes you think the CPB's administrative bans are protected from judicial oversight? They are not. In other words, they are subject to judicial review.

But for the most part, judicial oversight - whether in the US or, for example, Canada, is not an automatically-triggered process. It requires an aggrieved party to file a lawsuit against the governmental agency asking the court to compel the agency to stop doing the wrong thing and start doing the right thing.

In this instance, anyone who has standing as an aggrieved party - such as the harried and hassled folks spotlighted in the 2 articles - can file a lawsuit against the applicable US govt agency/ies seeking specific relief. In fact, your second article reflects this fact in an indirect way; for example: (a) the person who unfortunately gave up out of frustration rather than spend a lot of money in legal fees, and (b) the immigration attorney who has more work than he can handle.

[aphid 0]

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I thought as a practicing lawyer, you and others might be taken aback at the (apparent) unconstitutional protection shielding them from judicial oversight.

What makes you think the CPB's administrative bans are protected from judicial oversight? They are not. In other words, they are subject to judicial review.

But for the most part, judicial oversight - whether in the US or, for example, Canada, is not an automatically-triggered process. It requires an aggrieved party to file a lawsuit against the governmental agency asking the court to compel the agency to stop doing the wrong thing and start doing the right thing.

In this instance, anyone who has standing as an aggrieved party - such as the harried and hassled folks spotlighted in the 2 articles - can file a lawsuit against the applicable US govt agency/ies seeking specific relief. In fact, your second article reflects this fact in an indirect way; for example: (a) the person who unfortunately gave up out of frustration rather than spend a lot of money in legal fees, and (b) the immigration attorney who has more work than he can handle.

Andy, I respectfully disagree.

I am the un-named client in the article that has attempted legal action to the sum of $48K thus far. And the Court agreed Friday past that NO, they do NOT have jurisdiction to review (alleged) unlawful or abusive processing of Expedited Removal orders issued by CBP.

If you would like to discuss this further, I will consider private correspondence.

John

[SivaGanesha 2]

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I am the un-named client in the article that has attempted legal action to the sum of $48K thus far. And the Court agreed Friday past that NO, they do NOT have jurisdiction to review (alleged) unlawful or abusive processing of Expedited Removal orders issued by CBP.

I think that the Court's decision is a cop-out--they do in fact have the right to review decisions--what the Court lacks is the courage to exercise that jurisdiction.

Due process would be a wonderful benefit to asylum seekers making a once-in-a-lifetime petition for a green card based on asylum. But when you think about it, due process--even if it were available--wouldn't really help a Canadian who wants/needs to cross the border several times a week.

Suppose a Canadian attempts to cross the border, is denied, and suppose for the sake of argument that a due process right of appeal did exist. What would happen then if the Canadian decided to exercise that right? The Canadian would sit in detention for weeks, months, or years while their appeal worked its way through the court system. Then--if their appeal had merit--they might eventually be allowed into the country. They'd still only be in tourist status, though, and would need to leave within six months. And the next time they tried to enter they could be given a hard time all over again.

For a Canadian who needs to enter repeatedly such a scenario isn't practical. If they need to fight a months-long court battle every time they seek to enter the USA, it isn't going to be worth it--even if they did have access to the US court system.

In your own case, you were, I hope, aware that even if you had succeeded in getting your five year bar overturned by the US courts, it wouldn't have in any way forced them to admit you the next time you sought to enter. The only effect that overturning the bar would have would be to increase your chances of getting in the next time from "absolutely zero" to "very very slim". I'm not sure if I'd consider that worth $48K but that was obviously your decision.

Expedited removal isn't really the issue for Canadians who seek to enter the USA legally, frequently, and conveniently. The court system moves too slowly to help such Canadians even if such help were available.

What's needed is a return to a friendlier attitude on the border. Unfortunately that is a matter of attitude and not something that can be legislated (either in Congress or from the bench). Until that happens I think you will see more and more Canadians travelling to the USA only when business requires it and spending their discretionary dollars (currently worth $1.03US up from $0.70US a few years ago) elsewhere.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014

[Andy9o8 2]

I didn't realize the situation was hitting ordinary Canadians quite this hard (and so foolishly) in this way, so I'm learning some newer-to-me information here. If the net effect is that BP guards are given unfettered authority to summarily ban someone for 5 years, without real opportunity for judicial review, then yes, that would disappoint me.

I don't know if the court handling your case reduced its ruling to a detailed written opinion. I'd be curious to read the full opinion (if one exists) to see how much of the ruling was a determination that the court lacked jurisdiction - and on what basis - and how much (if any) was based on other (non-jurisdictional) grounds.

I was going to joke about your $48K in legal fees "going to a good cause", but this is obviously no joking matter. Assuming that you're complying with the requirement to spend fewer than 180 nights in the US, then it sounds like you're really getting raped.

[SivaGanesha 2]

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I was going to joke about your $48K in legal fees "going to a good cause", but this is obviously no joking matter.

While I don't know aphid's personal reasons for his litigation, it occurred to me that from an economic perspective, it might not be the wisest battle to fight. The $48k is going to an American attorney and, hence, is still stimulating the US economy. Keeping that money in Canada might send a stronger message economically speaking.

What's needed to change this kind of attitude is for the American business community--who have some clout with the politicians--to stand up and tell the politicians that things have to change because it is hurting the economy. When a law abiding foreigner is treated poorly by authorities in the USA, the best thing for them to do is refuse to spend their money in the USA--even on attorneys.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014

[SivaGanesha 2]

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I don't know if the court handling your case reduced its ruling to a detailed written opinion. I'd be curious to read the full opinion (if one exists) to see how much of the ruling was a determination that the court lacked jurisdiction - and on what basis - and how much (if any) was based on other (non-jurisdictional) grounds.

The article--as well as this thread--references a decision by the 7th Circuit Court of Appeals involving the expedited removal of two Pakistani citizens from Chicago's O'Hare airport. Here is the decision:

http://www.ca7.uscourts.gov/tmp/7X0XKCUE.pdf

It looks like they managed to gain access to the US court system--which otherwise they would have physically had no access to, being in detention without a lawyer--because one of them was briefly released from detention for medical reasons. Although they gained access to the court system, in the end the court system ruled they had no authority to intervene. The court ruled that, although it is disturbing the level of power that CBP has, they had no jurisdiction to intervene.

I think it is something of a cop out for the court to say they have no jurisdiction to intervene. A federal court always has jurisdiction over events taking place on US soil. However, even if the court accepted jurisdiction, there is no guarantee that the actual decision would go the way of the foreign citizens. Unless there were clear evidence of an abuse of power by CBP, it is likely that the decision would go the CBP's way. It is not that the CBP is above the law--it is that the law gives the CBP fairly wide discretion to decide who is admitted to the USA.

As previously noted, none of this is all that relevant to Canadians for two important reasons. One is that Canadians who cross the border generally do so frequently--so court review is simply too slow even if it did have a chance of going the Canadians' way.

The second consideration is that when you enter the USA by air from Canada--unlike, say, a Pakistani citizen entering at O'Hare--you clear US customs at the Canadian airport. Thus the decision is made in Canada, and there is zero chance of getting a US court to reverse that decision because the decision is not made on US soil.

The case cited is a disturbing one but its relevance to Canada is questionable.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014

[Andy9o8 2]

I appreciate your detailed thoughts.

Pls forgive my nit-picking on the following couple of details:

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A federal court always has jurisdiction over events taking place on US soil.

Not necessarily all events; some events implicate only the laws and/or acts of individual states, and don't always implicate federal law. In such instances, usually only state courts have what is technically referred-to as "subject matter jurisdiction". (But this thread's subject is not such a case.)

(In fact, when you file a lawsuit in US federal court, your Complaint must include a statement specifically explaining why the federal court does have jurisdiction; and if you fail to do so, your Complaint gets bounced.)

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when you enter the USA by air from Canada--unlike, say, a Pakistani citizen entering at O'Hare--you clear US customs at the Canadian airport. Thus the decision is made in Canada, and there is zero chance of getting a US court to reverse that decision because the decision is not made on US soil.

If I, as a US lawyer, had a Canadian client with exactly such a situation, I would argue that the US federal court's jurisdiction is properly invoked, because the action complained-of was an official act of an employee of a US federal agency, on behalf of the US government. I think that argument would stand a pretty good chance in most instances.

[Amazon 7]

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I appreciate your detailed thoughts.

Pls forgive my nit-picking on the following couple of details:

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A federal court always has jurisdiction over events taking place on US soil.

Not necessarily all events; some events implicate only the laws and/or acts of individual states, and don't always implicate federal law. In such instances, usually only state courts have what is technically referred-to as "subject matter jurisdiction". (But this thread's subject is not such a case.)

(In fact, when you file a lawsuit in US federal court, your Complaint must include a statement specifically explaining why the federal court does have jurisdiction; and if you fail to do so, your Complaint gets bounced.)

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when you enter the USA by air from Canada--unlike, say, a Pakistani citizen entering at O'Hare--you clear US customs at the Canadian airport. Thus the decision is made in Canada, and there is zero chance of getting a US court to reverse that decision because the decision is not made on US soil.

If I, as a US lawyer, had a Canadian client with exactly such a situation, I would argue that the US federal court's jurisdiction is properly invoked, because the action complained-of was an official act of an employee of a US federal agency, on behalf of the US government. I think that argument would stand a pretty good chance in most instances.

Andy... I have to agree with Aphid... I have quit crossing the border the other way because I am still going to have to cross back over to our beloved police state.

The Border Patrol at Sumas and Blaine are out of control and I bet that same culture exists at Pt Roberts just a couple miles over to the west. I used to love traveling up to Canada even for a day trip to Vancouver which is just a couple hours away, but when you have to put up with dickheads powertripping all over themselves.... its just not worth it.

[aphid 0]

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If I, as a US lawyer, had a Canadian client with exactly such a situation, I would argue that the US federal court's jurisdiction is properly invoked, because the action complained-of was an official act of an employee of a US federal agency, on behalf of the US government. I think that argument would stand a pretty good chance in most instances.

My lawyer and I participated in a nationally syndicated radio program this morning. If you'd like to understand the jurisdictional limitations place upon the federal court by Congress, feel free to listen to it. (The program starts about 5 minutes in, following the news).

The file is attached and should work with Windows Media Pplayer.

[wsd 0]

Thanks!

[pbwing 0]

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If I, as a US lawyer, had a Canadian client with exactly such a situation, I would argue that the US federal court's jurisdiction is properly invoked, because the action complained-of was an official act of an employee of a US federal agency, on behalf of the US government. I think that argument would stand a pretty good chance in most instances.

My lawyer and I participated in a nationally syndicated radio program this morning. If you'd like to understand the jurisdictional limitations place upon the federal court by Congress, feel free to listen to it. (The program starts about 5 minutes in, following the news).

The file is attached and should work with Windows Media Pplayer.

"I'm a bit of a push back kinda person....."

That's good stuff right there!
Hope you doing good John!!

[flashvortx 0]

Move to Mexico and they'll let you right on in

[tr027 0]

You might not have noticed, but it's not just the CBP that's above the law, it's the whole corrupt government. No accountability, no justice.

"The evil of the world is made possible by nothing but the sanction you give it. " -John Galt from Atlas Shrugged, 1957

[aphid 0]

Hi Paul, hope to see you at the CRW record.

(Editorial from the Vancouver Sun - I wish more American's would read this, so they could get an idea of what their friendly neighbor is beginning to think about them, after supporting their "war on terror" with our youth's blood, their broken economy with our dollars, and as their number one foreign oil/gas/electric/water supplier)

http://www.vancouversun.com/news/Cross+border+shoppers+terrorists/4801879/story.html

*************************************

Cross-border shoppers are not terrorists

The border between Canada and the United States is like no other. Although its characterization as the "world's longest undefended border" has always been more hyperbole than fact, most Canadians think nothing about crossing it to shop, visit friends, see the sights and even buy second homes. Last July, a peak travel month, Canadians -80 per cent of whom live within 100 kilometres of the border -made 3.8 million trips to the U.S., of which two million were same-day trips by car.

Most crossings take place without incident but a growing number of Canadians are finding the reception at the border less welcoming than in the past. The mood at U.S. crossing points changed abruptly after the 9/11 terrorist attacks and the perception of Canada shifted from friendly neighbour to terrorist haven. The Fraser Institute's recent report What Congress Thinks of Canada refers to "persistent and repeated" allegations by U.S. politicians that Canada is soft on terrorism, including the myth that the perpetrators of 9/11 entered the U.S. from Canada. In fact, the terrorists lived, worked and trained in the U.S. and none had crossed the Canadian border.

Nevertheless, American lawmakers fear what they see as porous borders with Canada and Mexico and the U.S. Customs and Border Protection arm of the Department of Homeland Security no longer appears to differentiate between tourism from a highly-developed, post-industrial nation and illegal immigration from a crime-ridden developing country.

In December, the U.S. Government Accountability Office claimed less than one per cent of the border is secure, and that Islamic terrorists are far more likely to enter the U.S. from Canada than from Mexico. Meanwhile, Democratic senators from states near the border have asked the U.S. Department of Defence to set up military radar to catch drug traffickers using low-flying aircraft to smuggle drugs from Canada into the U.S.

However, a joint border threat and risk assessment by U.S. Customs and Border Protection, Canada Border Services Agency and the RCMP published last July reported that the "vast majority of cocaine that crosses the U.S.-Canada border is northbound into Canada."

The risk assessment also noted that most of the foreign-produced marijuana in the U.S. comes from Mexico (most of Canada's is from Jamaica) and that Canadian marijuana represents only a small portion of the U.S. market.

Despite the evidence that the Canada-U.S. border is not a significant security threat, U.S. border guards are greeting Canadians with suspicion, if not outright hostility. Take the case of Leah Shaffer, a North Vancouver man who owned a cottage in Point Roberts, Wash., for 23 years. Although he provided documents to prove he lived and worked in Canada, a border guard decided Shaffer was living illegally in the U.S. and banned his entry for five years. Rather than spend thousands on legal costs to fight the order, he sold the cottage.

In another case, Wayne Liptrot, 68, was banned from entering the U.S. while trying to board a plane to Hawaii (where he owned two condos) at Vancouver International Airport in 2008 after a U.S. customs officer accused him of living in the U.S. from 1993 to 2006. The ban remained in force even when he showed documents that proved the allegations were false to the officer's supervisor.

Of course, the U.S. has every right to protect its borders and assert its sovereignty. But when overzealous border guards grill, humiliate and intimidate Canadians, and exercise absolute power to deny entry to law-abiding citizens with proper travel documents, governments need to act.

As it stands, a Canadian denied entry must file an appeal in U.S. federal district court, a lengthy and costly process. In one case that's come to our attention, a Canadian banned for five years spent $48,000 to challenge the order in court. After a two-year fight, he lost. This state of affairs is unacceptable. Canadians are not trying to sneak into the U.S. in search of a better life as an illegal alien. Life is pretty good here. Nor is Canada flooding the U.S. with drugs, unlike the U.S. flooding Canada with handguns.

It is up to both the U.S. and Canadian governments to establish an expedited process that will resolve border disputes quickly at no cost to the victim. The technology to verify identity and the validity of travel documents is well-established -as the enhanced driver's licence and Nexus card have shown.

A fast, efficient pre-clearance system for business travellers and a streamlined dispute resolution process will avoid confrontations at the border. Maybe then Canadians travelling to the U.S. will feel again like welcome guests instead of criminals.

[aphid 0]

If this 5 year ban wasn't so patently absurd, it might be kind of funny.

http://www.theglobeandmail.com/life/facts-and-arguments/the-essay/professional-pet-sitting-is-a-risky-business/article2018672/

"How did I get tangled up in a style of life so sordid it put the U.S. government on high alert? ...the hyper-vigilant organization had no recourse but to summarily ban me from their country. You see, I'm a pet-sitter. I know it’s hard to believe; Homeland Security certainly didn't."

I hope the good people of America sleep better at night knowing they're being protected by these officials. (Co-incidentally, this one was also administered by the Seattle Field Office).

[SivaGanesha 2]

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If this 5 year ban wasn't so patently absurd, it might be kind of funny.

http://www.theglobeandmail.com/life/facts-and-arguments/the-essay/professional-pet-sitting-is-a-risky-business/article2018672/

"How did I get tangled up in a style of life so sordid it put the U.S. government on high alert? ...the hyper-vigilant organization had no recourse but to summarily ban me from their country. You see, I'm a pet-sitter. I know it’s hard to believe; Homeland Security certainly didn't."

I hope the good people of America sleep better at night knowing they're being protected by these officials. (Co-incidentally, this one was also administered by the Seattle Field Office).

Where does it say in the cited article that the would-be pet sitters were barred for five years? I realize that you had the misfortune of being barred for five years; however, not everyone who is denied entry is barred from trying again for an extended time period. The more common scenario is that the border guard elucidates what documentation is required to satisfy their concerns--then the person is sent packing back to Canada until, but only until, they come up with the required paperwork. That appears to be what happened in this case.

None of this has anything to do with 9/11, terrorism, or anything like that--although borders may be scrutinized a bit more carefully post-9/11. Expedited removal is a Clinton-era innovation in immigration policy.

All this is basically Customs and Immigration 101. If you are applying to enter a foreign country and you seek to work, you need permission to work--or you will be denied entry. Period. Pretty much every country in the world has such a policy with regard to pretty much every other country in the world. This is not some American-Canadian thing.

Pet sitting is a borderline (pardon the pun) activity. It is a form of barter, which MIGHT be considered work for hire--but if pet sitting were the only thing in the mix, a more lenient border guard might let it slide. But throw in the fact that this couple were planning on running a business from the pet-sitting home (according to the article) and also had no Canadian home (also according to the article), and it isn't hard to understand the CBP person's decision.

In your case, I do think that the decision to bar you for five years was unbelievably draconian. I do think that if they had some concerns--and anyone crossing the border with a motorhome and a lot of equipment has the potential to raise concerns--they should have given you a chance to explain yourself, rather than bar you.

Sometimes CBP does act in an unfairly heavy-handed manner, and it is difficult to remedy the situation when they do, as you can attest. But sometimes Canadians have a difficult time understanding that American immigration laws do apply to Canadians and always did, even in the more relaxed pre-9/11 era.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014

[aphid 0]

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Where does it say in the cited article that the would-be pet sitters were barred for five years?

From the article:
"...to summarily ban me from their country."
"...we were fingerprinted, photographed and escorted back to the Canadian border under armed guard."
"...having no permanent address for more than six consecutive months is grounds for banishment from the United States."

A denial of entry (relatively common) does not ban re-entry. You can try again "tomorrow". Note the author used the word ban.

A denial of entry does not precipitate fingerprinting, mugshots and armed escort. They do watch you go back from their windows though. :)

And again the author uses the word banishment.

No, she did not use the correct legal term, Order of Expedited Removal. Expedited Removal orders carry two penalties; 5 year or lifetime.

And just to be sure, I checked with the reporter who lined up the guest writer. Does that clear it up?

The point I'm driving at is two-fold;
1) Expedited Removal was not authorized by Congress to be used for suspicion or even proof of working illegally, and,
2) Orders of Expedited Removal, even when unlawfully or incorrectly applied by a Border employee, are exempt from review by Federal Courts.

I can assure you, most Canucks do not "have a difficult time understanding that American immigration laws do apply to Canadians and always did".

[Andy9o8 2]

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Orders of Expedited Removal, even when unlawfully or incorrectly applied by a Border employee, are exempt from review by Federal Courts.

I think I found the US statute that does this. It's Title 8 U.S. Code, § 1225, entitled, Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing, and "provides for removal Removal without further review if no credible fear of persecution."

Now I have to ponder whether there's some challenge to its constitutionality that would be feasible. Guess that's on my to-do list.

[SivaGanesha 2]

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A denial of entry (relatively common) does not ban re-entry. You can try again "tomorrow". Note the author used the word ban.

What ordinarily happens is that an alien who appears to be acting in good faith but is inadmissible is allowed to withdraw their application to enter the USA. They then leave 'voluntarily'--of course it is not really voluntary but it avoids the 5-year (or lifetime) bar. If the alien is clearly acting in bad faith, they may not be allowed to withdraw their application (triggering a bar). And if the alien chooses this particular point in time to "push back"--there may be no choice but to proceed with Expedited Removal/5-year bar.

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A denial of entry does not precipitate fingerprinting, mugshots and armed escort.

Yes, one can be fingerprinted, etc, if one withdraws one's application for admission to the USA. Have a look, for example, at the following immigration law site, specializing in Canada-USA issues:

http://www.visaplace.com/blog-immigration-law/immigration-questions-answers/i-was-denied-entry-to-the-us-what-do-i-do/

Note that no mention is made about expedited removal, and yet the lawyer still says:

"US Customs usually finger prints and photographs you making you feel very uncomfortable to say the least"

Note also the following from the article you quote:

"We were officially pronounced undesirable, unsavoury, persona non grata, until we could show proof of Canadian residency at a fixed address for at least six months."

No mention of a five year bar--just a requirement to produce proof of Canadian residency. If they can produce such documents the next day, they can come back the next day.

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And just to be sure, I checked with the reporter who lined up the guest writer. Does that clear it up?

This is a nuance that I highly doubt a Globe and Mail reporter would have the slightest clue about. Now if you told me that an immigration attorney representing the Roberts family confirmed they were issued an Order of Expedited Removal, then I would stand corrected.

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1) Expedited Removal was not authorized by Congress to be used for suspicion or even proof of working illegally, and,

So what IS it intended to be used for in your opinion? Since ER came into being in 1997, it seems clear that it was not originally a post-9/11 antiterrorism measure (tho it may have evolved in that direction).

Congress doesn't make laws for no reason. If ER doesn't even have enough teeth to deal with someone who turns up at the border clearly intending to work illegally--what purpose would the law even serve?

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2) Orders of Expedited Removal, even when unlawfully or incorrectly applied by a Border employee, are exempt from review by Federal Courts.

This part I do agree with, but I still contend that this review process would be of little help to a typical Canadian tourist. Before ER came in during the 1990's, my understanding was that if you were a "push back" kind of person and insisted on court review, you would get it. But you'd sit in detention for weeks or months before your hearing before a judge, with no guarantee of a favorable result when you did so.

Judicial review of expedited removal orders WOULD help people like Maher Arar, the dual Canadian-Syrian citizen who was deported to Syria, despite traveling on a Canadian passport, in 2002 and then tortured.

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I can assure you, most Canucks do not "have a difficult time understanding that American immigration laws do apply to Canadians and always did".

The Globe and Mail article that you quoted ridiculed American immigration authorities despite the fact that the Roberts couple were guilty of at least two and perhaps three serious violations of American immigration law--violations that have always been serious, before and after 9/11, before and after ER:

Pet sitting might be considered barter and a form of illegal work.

Running a business from a temporary US home while visiting the USA is definitely illegal work.

Entering the USA without a proper Canadian address is illegal even if you don't plan to work illegally.

To be fair, though, a number of the 18 comments to the Globe article DID (properly IMHO) support the CBP decision in this matter. So I may have spoken too soon when I claimed that Canadians don't understand the obligation to obey US law.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014