Introduction

The number of dual citizens who renounce their United States citizenship has risen almost every year since the enactment of the Foreign Account Tax Compliance Act (“FATCA”) on March 18, 2010.  FATCA requires foreign financial institutions to report on the non-U.S. financial accounts of United States citizens; this allows the Internal Revenue Service (“IRS”) to identify U.S. citizens who have not reported their overseas assets.

In 2010, the number of U.S. citizenship renunciations was 1,534; in 2015, it rose to 4,279.  This number has continued to rise despite the increased fee for renunciation of United States citizenship (from $450.00 USD to $2,350.00 USD), which the U.S. Department of State (“DOS”) imposed on September 12, 2014 (the official notice erroneously stated that the higher fee would apply on September 6, 2014).  Obviously, not all of these renunciations were caused by FATCA.  However, it is likely that a significant number of cases were motivated by it.

The original purpose of FATCA was to identify unreported overseas financial accounts held by domestic U.S. taxpayers.  However, it has also adversely affected other groups of individuals, including:

• Persons who were born in the United States but who have spent most of their lives residing abroad; and
• Persons who may have unknowingly acquired United States citizenship by law (such as birth abroad to a United States citizen parent).

Many of these individuals have never filed a U.S. tax return, although they may be legally required to do so.  FATCA makes it easier for the IRS to identify these “accidental Americans” (at least those who come to the attention of foreign financial institutions) and take enforcement action against them.

As a result of FATCA, many U.S. citizens are now seeking tax advice from a U.S. Certified Public Accountant (“U.S. CPA”).  Although it is important for U.S. citizens to consult with a qualified U.S. CPA in order to determine the tax implications of a loss of United States citizenship, it is equally important to consult with a qualified U.S. lawyer on the potential immigration implications.

Relinquishment v. Renunciation

Relinquishment is a general term, which refers to a voluntary loss of United States citizenship, through the commission of one of the expatriating acts described in §349(a) of the Immigration and Nationality Act (“INA”).  A formal renunciation at a U.S. consular post is listed in INA §349(a) as an expatriating act but it is only one of many possible ways that a U.S. citizen can lose their citizenship.

In some cases, it is possible to argue that a U.S. citizen has already lost United States citizenship many years ago, through the commission of an expatriating act other than renunciation.  Although it is not always possible to argue prior relinquishment of United States citizenship, it is the preferred option.  There are two reasons for this:

• An individual who successfully establishes that he or she relinquished United States citizenship many years ago (through some means other than renunciation) should be relieved of U.S. tax obligations in the subsequent years.
• An individual who has automatically relinquished United States citizenship (through some means other than renunciation) will avoid the potential immigration consequences that may arise in a formal renunciation case.

Requirements for Relinquishment of United States Citizenship

According to INA §349(a), a U.S. citizen will lose his or her nationality by voluntarily performing any of the listed expatriating acts with the intention of relinquishing United States nationality.  The full list appears here but the most commonly encountered expatriating acts are:

• Obtaining naturalization in a foreign country on or after the age of eighteen;
• Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign country on or after the age of eighteen;
• Serving in the armed forces of a foreign country if: (1) those armed forces are engaged in hostilities against the United States; or (2) he or she serves as a commissioned or non-commissioned officer;
• Accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign country on or after the age of eighteen: (1) if he or she acquires the nationality of that foreign country, or (2) a declaration of allegiance is required for the office, post, or employment; or
• Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign country.

In order for a loss of U.S. citizenship to occur, the individual must have voluntarily performed one of the expatriating acts.  In addition, the expatriating act must also have been performed with the express intention of relinquishing United States citizenship.

According to INA §349(b), whenever loss of United States citizenship is at issue, the burden of proof falls on the party claiming that the loss occurred, by a preponderance of evidence.  In the words, if an individual wishes to establish a prior relinquishment of United States citizenship, he or she needs to present sufficient documentation to evidence that loss.

INA §349(b) states that a person who performs one of the expatriating acts described in INA §349(a) is presumed to have done so voluntarily, although this presumption may be rebutted by sufficient evidence.  For example, there will be no loss of United States citizenship where the U.S. citizen can establish that he or she performed the expatriating act under circumstances involving duress, mistake, or incapacity.

Not only must the U.S. citizen have performed an expatriating act voluntarily, but he or she must also have intended to relinquish United States citizenship as a result of the expatriating act.  The intention to relinquish United States citizenship is clear in the case of a formal renunciation but it is less certain when other expatriating acts are performed.

The presumption described in INA §349(b) applies only to the voluntariness of the expatriating act itself and not to the intention to relinquish United States citizenship.  However, DOS applies a uniform administrative standard of evidence, which presumes that U.S. citizens intend to retain their citizenship when they:

• Obtain naturalization in a foreign state;
• Declare their allegiance to a foreign state;
• Serve in the armed forces of a foreign state not engaged in hostilities with the United States; or
• Accept non-policy level employment with a foreign government.

In other words, DOS will normally presume that there is no loss of citizenship when these specific expatriating acts are performed.  However, this presumption may still be rebutted by an individual who wishes to demonstrate that he or she intended to relinquish United States citizenship.  For example, an individual could establish their intention to relinquish United States citizenship by documenting:

• The basis for their reasonable belief that, by performing the expatriating act, they would lose their United States citizenship (i.e. they were mistakenly told by a lawyer that this would occur); and
• Their honest belief that they actually lost their United States citizenship after performing the expatriating act (i.e. they stopped using their U.S. Passport, voting in U.S. elections, and did not act in a manner consistent with someone who had retained United States citizenship).

Dual citizens who were born in the United States and who naturalized as Canadian citizens prior to 1973 should have a much easier time demonstrating that they intended to renounce their United States citizenship.  This is because, until 1973, the Canadian oath of naturalization contained language specifically stating that the applicant was relinquishing all prior citizenships.  Although this would not be considered a formal renunciation under INA §349(a), the language of the oath would still be considered compelling evidence of the individual’s intention to relinquish United States citizenship.

In Ulin v. Canada, a 1973 decision of the Federal Court of Canada, the renunciatory language contained in the oath of naturalization was found to be unconstitutional.  After this decision, the renunciatory language was removed from the oath of naturalization.  Therefore, cases involving a Canadian oath of naturalization taken after 1973 cannot rely on the language of the oath itself in order to demonstrate an intention to relinquish United States citizenship.  However, as mentioned above, it is still possible to demonstrate this intention, through the submission of other evidence.

Renunciation of United States Citizenship

If it is not possible to argue a prior relinquishment of United States citizenship, a formal renunciation before a U.S. consular officer may be considered.  Adult United States citizens have the right to formally renounce their citizenship as long as they have a proper understanding of the consequences of renunciation and they make the decision to do so voluntarily.

Unfortunately, a formal renunciation does not protect the United States citizen from prior U.S. income tax obligations, which makes it a less desirable option than arguing a prior relinquishment of citizenship.  There are also a few negative consequences that may occur in the case of a formal renunciation.

According to INA §212(a)(10)(E), a United States citizen who officially renounces United States citizenship and who is determined by the U.S. Department of Homeland Security to have done so for the purpose of avoiding U.S. tax is inadmissible to the United States.  Therefore, it is theoretically possible for former U.S. citizens to be barred from the United States because they renounced United States citizenship.  However, it must be determined that they did so with the intention of avoiding U.S. tax obligations, which can be difficult to prove.

To the best of the author’s knowledge, no one has been barred from the United States under INA §212(a)(10)(E).  However, there is no way to be sure that the United States Government won’t enforce INA §212(a)(10)(E) more strictly in the future.  So a U.S. citizen who formally renounces United States citizenship now could find herself barred decades after the renunciation took place.

To protect against the INA §212(a)(10)(E), the author typically submits a sworn statement at the time of the renunciation, describing the non-tax reasons why the applicant has decided to renounce her United States citizenship.  A sworn statement made at the time of the renunciation should carry considerable weight if the former citizen’s intention is brought into question at some point in the future.

As a result of the Brady Handgun Violence Prevention Act, it is unlawful to sell firearms to persons for whom a finding of loss of nationality due to renunciation has been made.  In other words, a former U.S. citizen who formally renounces United States citizenship cannot purchase a firearm in the United States.  Of course, this will not be a significant issue for most applicants.

Also, as a result of the USA PATRIOT Act and the Safe Explosives Act, a former U.S. citizen who formally renounces United States citizenship cannot obtain a hazardous materials endorsement for a U.S. commercial driver’s license.  Again, this will not be a significant issue for most applicants.

The Process for Relinquishing/Renouncing United States Citizenship at a Consular Post

A dual citizen who wishes to formally relinquish or renounce their United States citizenship before a U.S. consular officer must request a special appointment with the American Citizenship Services Section at a U.S. consular post.  Certain forms and documents must accompany the appointment request.

Unfortunately, there is a very long wait for these appointments, since relinquishments and renunciations are considered low priority cases.  U.S. consular posts in Canada typically schedule these special appointments many months into the future.

At the appointment, if the U.S. citizen wishes to argue a prior relinquishment of United States citizenship, she may present her evidence at that time.  On the other hand, if the U.S. citizen wishes to renounce United States citizenship, she will be interviewed by a consular officer to verify that she understands the consequences of the renunciation and is proceeding voluntarily.

According to the Foreign Affairs Manual, consular officers should schedule a second appointment for the actual oath of renunciation, presumably to allow the proposed renunciant to further reflect on their decision.  However, in practice, the U.S. consular posts in Canada typically interview the applicant and administer the oath of renunciation during the same appointment.

As mentioned above, DOS increased the fee for renouncing United States citizenship from $450.00 USD to $2,350.00 USD on September 12, 2014.  DOS also began charging the $2,350.00 USD fee for claims of prior relinquishment of citizenship on November 9, 2015.

U.S. consular officers do not have the authority to approve a request for a Certificate of Loss of Nationality (“CLN”).  The final decision is made by the Office of American Citizen Services and Crisis Management in the Directorate of Overseas Citizens Services, Bureau of Consular Affairs of the Department of State.

Once this final approval is given, a CLN will be issued to the former U.S. citizen.  If the loss of United States citizenship is based on a prior expatriating act, the CLN will be effective as of the date of that prior act.  If it is based on a formal renunciation, the CLN will be effective as of the date of the oath of renunciation.

Conclusion

Since the loss of United States citizenship can result in both immigration and tax consequences, U.S. citizens should seek professional advice from a qualified U.S. immigration lawyer and U.S. CPA prior to taking any formal action.

As a result of the Paris and San Bernadino attacks, the United States began closely scrutinizing its Visa Waiver Program (“VWP”).  Of course, Ms. Tashfeen Malik (one of the San Bernadino attackers) entered the United States under K-1 status, using an actual fiancee visa that she had obtained from a United States consulate.  Her husband, Syed Farook, was a United States citizen.  In other words, neither attacker had actually used the VWP to enter the United States.

In any event, reforms to the VWP were included in the Consolidated Appropriations Act, 2016 [Public Law 114-113] (the “Act”), which President Obama signed into law on December 18, 2015.  The two most significant changes to the VWP, as a result of the Act, are as follows:

• It requires that all VWP applicants be in possession of machine-readable passports. Beginning on April 1, 2016, the Act also requires that all passports must be electronic and fraud resistant, and must contain relevant biographic and biometric information. Governments of participating VWP countries must certify that they meet these requirements by April 1, 2016, and must also certify by October 1, 2016 that they require these passports for entry into their countries.
• More importantly, any individual who is a dual citizen of Iran, Iraq, Sudan (but not including South Sudan), or Syria, or who has visited any of those countries since March 1, 2011, is ineligible for travel to the United States under the VWP.  In other words, an Iranian citizen who also holds United Kingdom citizenship will no longer be eligible to use the VWP.  The Department of Homeland Security or Department of State may also designate additional countries as “areas of concern” or state sponsors of terrorism in the future, and if they do, similar restrictions will apply to individuals from those countries as well.

A VWP prohibition also applies to any individual (regardless of citizenship) who has visited Iran, Iraq, Sudan, or Syria since March 1, 2011.  However, an exception to this prohibition (but not the dual national prohibition) applies to individuals who are either a member of the military of a VWP country or a full-time employee of the federal government of a VWP country, who has traveled to one of the excluded countries on official orders.  In other words, it not sufficient to merely be a member of the military or a federal government employee of a VWP country; the individual must also have traveled to the excluded country on official orders.

On January 21, 2016, the Department of Homeland Security (“DHS”) and Department of State (“DOS”) issued a joint statement addressing these changes (the “Joint Statement”).  In this Joint Statement, DHS/DOS stated that (as of that date) travelers who currently had a valid Electronic System for Travel Authorization (“ESTA”) and who had previously indicated on their ESTA application that they held dual nationality with one of the four excluded countries would have their current ESTAs revoked.

The Joint Statement also stated that, under the new law, the Secretary of Homeland Security had the authority to waive these restrictions, if he determined that such a waiver was in the law enforcement or national security interests of the United States; such waivers would be granted only on a case­-by-­case basis.  As a general matter, categories of travelers who may be eligible for a waiver include:

• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
• Individuals who traveled to Iran for legitimate business­-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
• Individuals who have traveled to Iraq for legitimate business­-related purposes.

Whether ESTA applicants will receive a waiver will be determined on a case­-by-­case basis, consistent with the terms of the law. DHS/DOS will also continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

It should be mentioned that a dual national of one of the excluded countries (Iran, Iraq, Sudan, or Syria) who also holds Canadian citizenship will not be subject to any additional restrictions since Canada is not a participant of the VWP.  Canadian citizens are visa exempt under 8 CFR 212.1(a); this visa exemption exists independently from the VWP.

Introduction

Foreign-based franchisors may wonder how difficult it would be to expand their businesses into the United States.  Although ensuring compliance with local franchising laws is essential, it is not the only challenge that foreign-based franchisors will face when attempting to establish a presence in the United States.

For example, most foreign-based franchisors will not have the same level of brand recognition in the United States as they will have in their own countries.  For this reason, it may be much more difficult to find potential franchisees in the target country.

One possible solution is for the foreign-based franchisor to initially sell its U.S. franchises to citizens of its home country, or citizens of other countries where it may already have an established presence.  This solution offers significant advantages because many of the potential franchisees from these countries will be familiar with the franchisor’s brand name and business operations abroad.  However, it also creates an additional layer of complexity for franchisors, who will now need to advise their foreign franchisees on applicable U.S. immigration laws.

Fortunately, in most cases, a foreign franchisee will be eligible to own and operate a franchised business under the E-2 treaty investor category.  A summary of key E-2 eligibility requirements is provided below.

E-2 Treaty Investor Status Available to Specific Nationalities Only

The basis for E-2 treaty investor category lies in treaties that are intended to enhance and facilitate economic and commercial interaction between the United States and the treaty country.  Many countries (including Canada) already have an eligible treaty in force with the United States; a complete list of these eligible countries appears here.

Provided that the foreign franchisor’s home country, or other country where the franchisor has an established presence, has an eligible treaty with the United States, its citizens will be eligible to seek an E-2 visa.  However, E-2 eligibility does not extend to permanent residents of those eligible treaty countries.

The Foreign Franchisee Must Make a Qualifying Investment in the United States

In order to qualify for an E-2 visa, the foreign franchisee must have made a qualifying investment in the treaty business.  To establish this qualifying investment, the following must be established:

1. The foreign franchisee must be in possession and control over the capital invested. In other words, he or she must have acquired the investment funds by legitimate means (savings, gift, inheritance, contest, etc.) and have control/possession over the invested funds.
2. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. Therefore, a significant portion of the investment must already have been spent in furtherance of the franchised business before an E-2 visa will be issued.
3. The qualifying investment must be at risk in the commercial sense with the objective of generating a profit. In other words, the investment must come from the foreign franchisee’s personal capital or, if a loan is obtained, it must not be secured on the assets of the franchised business.

The Foreign Franchisor’s Investment Must be Substantial

The foreign franchisee’s qualifying investment in the treaty business must also be considered substantial.  The official position of the United States Department of State (“DOS”) is that there is no set minimum dollar amount that will be considered “substantial” for the purposes of E-2 eligibility.  Instead, U.S. consular officers apply what is known as the proportionality test.

The proportionality test is a comparison between two figures:

1. The amount of qualifying funds invested; and
2. The cost of an established business or, if a newly created business, the cost of establishing such a business.

The lower the cost of the business, the higher the percentage the qualifying investment must be.

The question of whether a proposed investment will be considered substantial is very discretionary matter.  According to the current version of the Foreign Affairs Manual (“FAM”), investments of 100% or higher would normally automatically qualify for a small business of $100,000.00 or less.  At the other extreme, an investment of $10 million in a $100 million business would likely qualify, based on the sheer magnitude of the investment itself.

The examples provided in the current FAM are not very illustrative.  However, a prior version of the FAM did include the following specific examples of acceptable proportionality:

1. In the case of a $50,000.00 investment, an investment approaching 90-100% would easily meet the test;
2. A business costing $100,000.00 might require an investment of 75-100% to meet the test;
3. A business costing $500,000.00 would demand generally upwards of a 60% investment, with a $375,000.00 investment clearly meeting the test;
4. In the case of a million-dollar business, a lesser percentage might be needed, but a 50-60% investment would qualify;
5. A business requiring $10 million to purchase or establish would require a much lower percentage—a $3 million investment might suffice in view of the sheer magnitude of the dollar amount invested; and
6. An investment of $10 million in a $100 million business would qualify based on the sheer magnitude of the investment itself.

The above examples were later deleted from the FAM because too many consular officers were interpreting them as bright line tests.  Nevertheless, they can still be useful as examples of acceptable proportionality.

Despite the official DOS position that there is no minimum dollar amount, in practice, many U.S. consular posts still apply an unofficial minimum dollar threshold, in addition to the proportionality test.  This threshold will vary depending on the particular consular post.

For E-2 visa applications filed at U.S. consular posts located in Canada, a proposed investment of $75,000.00 or higher (preferably closer to $100,000.00) is normally sufficient to satisfy the unofficial minimum dollar threshold.  An investment as low as $50,000.00 may be acceptable in specific cases, but the chances of a denial will be much greater at this level of investment.

Franchised Business Must Not be a Marginal Enterprise

In order to qualify for an E-2 treaty investor visa, it must be established that the franchised business is not a “marginal enterprise.”  This term is defined as an enterprise that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his dependents.  In the case of future capacity (i.e. new business), this should be realizable within five years from the date that the foreign franchisee commences business operations in the United States.  Typically, the foreign franchisor will need to demonstrate that the franchised business will support several U.S. employees and still earn sufficient net income to support the foreign franchisor and his or her dependents, within the first five years of business.

Foreign Franchisee Must Develop and Direct the Treaty Business

An E-2 treaty investor must be seeking entry solely to develop and direct the treaty business.  The ability to develop and direct can normally be established by owning at least 50% of the treaty business (if the applicant retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means.

Most franchisees will own 100% of their franchised business.  However, franchise agreements often contain restrictions on how the franchisee can operate the business.  If these restrictions are too onerous, it is possible that a consular officer could conclude that operational control has been transferred to the franchisor by contract.  If this occurs, the foreign franchisee will no longer have the ability to develop and direct the treaty business.

The above issue was previously considered in the precedent decision of Matter of Kung, 17 I&N Dec. 260 (Comm’r 1978).  In that case, the Commissioner concluded that a franchisee could still qualify for E-2 status if he or she retained sufficient control over the management of the business, including the ability:

1. To hire and fire employees;
2. To set wage scales; and
3. To set the hours of the business.

The franchise agreement considered in Matter of Kung was actually quite restrictive.  Nevertheless, Commissioner concluded that the franchisee retained sufficient control over the treaty business.

In light of Matter of Kung, most franchisees should be able to demonstrate their ability to develop and direct the franchised business.

Hiring Foreign Employees

If a foreign franchisee is found to be eligible for an E-2 treaty investor visa as a principal investor, he or she may also hire foreign employees (if they hold the same nationality) who will be employed in an executive, supervisory, or essential skills capacity.  This allows the foreign franchisee to send key employees to the United States in order to assist in the operation of the franchised business.

Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.  An executive position provides the employee great authority to determine the policies and direction of the enterprise.  A supervisory position grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees (i.e. first line supervisors will not qualify).

Essential skills workers are employees who have special qualifications that make the service to be rendered essential to the efficient operation of the treaty enterprise. In other words, it must be established that the employee possesses specialized skills and that those skills are needed by the treaty enterprise. It must also be established that the treaty investor has a long-term need for the employee’s essential skills. Otherwise, the consular officer will expect the essential skills worker to eventually be replaced by a U.S. worker (typically within two years).

Duration of E-2 Visas

The maximum validity period for an E-2 visa will depend upon reciprocity with the foreign national’s country of nationality.  The maximum validity period for each country is shown in the reciprocity tables published by DOS; these reciprocity tables are available online.  In many cases, the maximum duration of an E-2 visa will be five years at a time.

During the validity period of an E-2 visa, the visa holder may freely enter the United States Status in connection of the treaty business.  They may also remain continuously in the United States for a maximum period of two years at a time.

There is no maximum limit on the number of years that an E-2 treaty investor may hold such status.  As long as they remain eligible, E-2 treaty investors may continue to renew their E-2 visas indefinitely.

The long-term nature of the E-2 category ensures that foreign franchisees who establish franchised businesses in the United States will be allowed to continue operating these businesses for an extended period.

Conclusion

For the above reasons, foreign-based franchisors who are interested in expanding their businesses into the United States may wish to consider selling at least some of their U.S. locations to citizens of other eligible treaty countries, especially those countries where the company’s brand is already well established.  This will help to simplify the task of finding potential franchisees and may help to accelerate the company’s expansion into the United States.

Earlier this month, the United States Department of State (“DOS”) announced that, due to technical problems, it was temporarily unable to issue U.S. visas at consular posts abroad.  This problem is currently affecting overseas visa processing worldwide.

According to the notice posted at travel.state.gov, applicant biometric data is not being processing properly, which is preventing overseas posts from performing the security checks necessary to issue visas.  As a result, consular posts are unable to issue U.S. visas to these individuals.

The above problems have also affected some U.S. passport processing abroad.  Domestic passport operations are still functioning, with some processing delays.  However, the technical problems have adversely affected the intake of some mailed applications and same-day service at passport agencies.

The United States Consulate General in Toronto has confirmed that consular posts have been unable to print most immigrant and non-immigrant visas for applicants who were approved after June 8, 2015. They have also been unable to process new applications submitted on or after June 9, 2015.

Individuals with visa interview appointments that are scheduled in Canada on June 22 or 23, 2015, are being advised to reschedule their appointments, if they submitted a DS-160 online application after June 9, 2015.  However, individuals who submitted their DS-160 online applications prior to June 9, 2015, should plan to attend their scheduled visa interview appointments.

Any non-immigrant who is currently in the United States, and who does not already hold a currently-valid U.S. visa, should consider delaying their trip abroad until this technical problem has been resolved.  Otherwise, they may experience delays in obtaining a new visa at a consular post abroad.  Even after the technical problem has been addressed, visa processing delays are expected as consular posts work to clear the backlog of pending cases.

The one exception to would apply to foreign nationals who are entitled to automatic visa revalidation under 22 CFR §41.112(d).  According to 22 CFR §41.112(d), certain non-immigrants in the United States who travel solely to contiguous territory (i.e. Canada or Mexico) for a period of 30 days or less may be readmitted and their expired visas will be deemed revalidated for that one entry.

DOS officials have stated that they are hoping to have their visa systems working again sometime this week.

United States Customs and Border Protection (“USCBP”) recently announced on its website that, sometime during September 2014, it would begin optimizing processing for first-time Canadian TN and L-1 applicants seeking entry into the United States under the North American Free Trade Agreement (the “NAFTA”).  TN status (also known as “Trade NAFTA” status) is available to Canadian citizens working in one of the designated professions described in Appendix 1603.D.1 to Annex 1603 of the NAFTA.  L-1 status is available to executives, managers, and specialized knowledge workers who are transferring to a United States company from a related foreign company.

The USCBP website states that, in connection with this initiative, it has designated fourteen ports of entry (including four preclearance locations) that will offer a more efficient approach to processing a high volume of TN and L-1 applicants.  Of course, TN and L-1 applicants may continue to apply at port of entry along the Canadian border for processing.  However, they are encouraged to apply at one of the designated ports of entry where they will receive “optimized processing.”

The fourteen ports of entry that have been designated for optimized processing are as follows:

1. Lester B. Pearson International Airport; P.O. Box 115; Toronto AMF; Toronto, Ontario; L5P 1A2 (Hours of Operation:  4:30 a.m. – 9:00 p.m. Daily)
2. Trudeau International Airport; 975 Romeo Vachon Boulevard, North; Room TT 2.400; Dorval, Quebec; H4Y 1H1 (Hours of Operation:  4:30 a.m. – 8:00 p.m. Daily)
3. Vancouver International Airport; International Terminal – Level 3; 3161 Grant McConachie Way; Richmond, British Columbia; V7B 0A4 (Hours of Operation:  4:30 a.m. – 8:30 p.m. Daily)
4. Calgary International Airport; P.O. Box 155; 2000 Airport Road, Northeast; Calgary, Alberta; T2E 6W5 (Hours of Operation: 4:30 a.m. – 8:00 p.m. Daily)
5. Highgate Springs Port of Entry; Interstate 89 at the Border; Highgate Springs, VT; 05460; (Hours of Operation:  8:00 a.m. – 4:00 p.m. Monday through Thursday)
6. Derby Line Port of Entry; Interstate 91; Derby Line, VT; 05830; (Hours of Operation:  9:00 a.m. – 3:00 p.m. Tuesday through Thursday)
7. Alexandria Bay Port of Entry; 46735 Interstate 81; Alexandria Bay, NY; 13607
8. Peace Bridge Port of Entry; One Peace Bridge Plaza; Buffalo, NY; 14213
9. Rainbow Bridge Port of Entry; One Rainbow Bridge; Niagara Falls, NY; 14330
10. Champlain Port of Entry; 237 West Service Road; Champlain, NY; 12919 (Hours of Operation: 8:00 a.m. – 4:00 p.m. Monday through Friday)
11. Detroit Canada Tunnel Port of Entry; 150 E. Jefferson; Detroit, MI 48226
12. Detroit Ambassador Bridge Port of Entry; 3033 Porter Street; Detroit, MI; 48216 (Hours of Operation: 8:00 a.m. – 4:00 p.m. Monday through Friday)
13. Blaine Peace Arch Port of Entry; 123 Second Street; Blaine, WA; 98230 (Hours of Operation: 8:00 a.m. – 4:00 p.m. Tuesday through Thursday)
14. Sweetgrass Port of Entry; 39825 Interstate 15; Sweetgrass, MT; 59484 (Hours of Operation: 10:00 a.m. – 6:00 p.m. Monday through Friday)

This sounds good in theory.  However, while some of these designated ports of entry are quite reasonable, others are notoriously difficult when adjudicating TN and L-1 cases.

It is also too early to know what form of “optimized processing” will be implemented at these designated ports of entry.  Many years ago, each port of entry had a Free Trade Officer who was solely responsible for adjudicating TN and L-1 applications at that location but they were eventually phased out.  It is uncertain whether this “optimized processing” will involve the appointment of a Free Trade Officer at each port of entry again.  When Free Trade Officers were in place, TN and L-1 adjudications were not necessarily better or faster but there was at least some consistency among cases filed at the same port of entry.

Canadian citizens seeking TN or L-1 status at the time of admission should not assume that their application will be adjudicated in a reasonable manner merely because they apply at one of these fourteen designated locations.  It is essential that an applicant be aware of the reputation of a particular port of entry before seeking TN or L-1 status there.

Of course, United States Citizenship and Immigration Services (“USCIS”) has been accepting first time TN petitions filed on behalf of Canadian citizens who are outside the United States since October 1, 2012.  Prior to this date, USCIS only accepted TN petitions where the applicant was already in the United States and extending his or her existing TN status or changing to TN from another status.

First time TN applicants who are not sure where to apply might consider seeking TN status from USCIS prior to their application for admission.  Based on anecdotal evidence, USCIS appears to be adjudicating TN applications in a reasonable manner.  The filing fee is higher and it takes much longer to adjudicate a TN through USCIS but at least an applicant will know that he or she has been approved prior to appearing at the port of entry.

USCIS also adjudicates L-1 petitions, in particular those filed on behalf of non-Canadian applicants.  The ability of a Canadian citizen to submit an L-1 petition at a port of entry along the Canada-U.S. border or at a preclearance facility at a Canadian airport has always been an exception to the general rule.  As a result, Canadian citizens are still free to file their L-1 petitions with UCSIS.  However, given the fact that USCIS is much stricter than USCBP when adjudicating L-1 petitions, it is rarely advisable for a Canadian to apply in this manner.

In conclusion, it is unlikely that this USCBP initiative will significantly alter the way that TN and L-1 cases are adjudicated.  Applicants who retain qualified lawyers experienced in border adjudications will continue to benefit from the insight that such lawyers possess, including (among other things) knowing the best port of entry to submit such cases.

On August 29, 2014, the U.S. Department of State (“DOS”) published an interim final rule in the Federal Register, which raised the fee for processing renunciations of United States citizenship from $450.00USD to $2,350.00USD, a 522.22% increase.  This new fee became effective on September 6, 2014.

The obvious reason for this fee increase is to discourage dual citizens from renouncing their United States citizenship.  During the past two years, renunciations of United States citizenship have increased significantly.

Every quarter, the U.S. Department of the Treasury publishes the names of all individuals who have expatriated.  For the first two quarters of 2014, the total number of individuals who expatriated was 1,577.  The total number of individuals who expatriated in 2013 was 2,999.  In 2012, the total was only 932.

It is widely believed that this increase in expatriations is due to the United States’ aggressive global tax reporting obligations, which includes the Foreign Account Tax Compliance Act (“FATCA”).  Among other things, FATCA requires foreign financial institutions and U.S. withholding agents to implement new procedures for tax information reporting and withholding, account identification, and documentation.  The objective of these procedures is to identify U.S. persons who are evading U.S. tax obligations using financial accounts held outside of the United States.

The rush to expatriate has created backlogs for renunciation appointments at United States consular posts in Canada.  As a result, it is currently not possible to schedule a renunciation appointment until the beginning of 2015.

Many of these proposed renunciants are Canadian citizens who believed that they had lost their United States citizenship years ago.  However, as a result of FATCA, they have recently obtained formal legal advice and discovered that they are still United States citizens.

Individuals who intend to renounce their United States citizenship should be aware that, as a result of 1996 amendments to the Immigration and Nationality Act (“INA”), a former U.S. citizen who renounces United States citizenship (on or after September 30, 1996) for the purpose of avoiding U.S. taxation will be considered inadmissible to the United States.  In light of this fact, care should be taken to properly document the reason for the renunciation in order to avoid this ground of inadmissibility.  Although this ground of inadmissibility is not being aggressively enforced at the present time, this may change in the future.

In some cases, it will be possible for an individual to argue that he or she has already lost U.S. citizenship by operation of law.  If the individual is successful, DOS will issue a Certificate of Loss of Nationality, retroactive to the date of the prior loss.

Arguing a prior loss of United States citizenship is preferable to renouncing because it will avoid the potential ground of inadmissibility that could result from a formal renunciation.  It could also reduce or eliminate the individual’s potential U.S. tax obligations.  For example, a former U.S. citizen who successfully establishes that he or she automatically lost citizenship by operation of law ten years ago would have ceased to have U.S. tax obligations as of that date.

In conclusion, individuals who believe that they lost their United States citizenship years ago but do not already possess a Certificate of Loss of Nationality should consult with a qualified United States immigration lawyer to determine if they are still United States citizens.  Even if they did lose their U.S. citizenship due to a prior expatriating event, they should apply for a Certificate of Loss of Nationality in order to properly document this loss.

If they are still U.S. citizens, they may then decide to formally renounce their United States citizenship at a consular post.  However, if they do, they should seek guidance from a qualified United States immigration lawyer to ensure that the renunciation does not result in their inadmissibility at some point in the future.

Within the Province of Ontario, a qualified United States Immigration Lawyer must be admitted to the practice of law in the United States and must also possess a Foreign Legal Consultant Permit issued by the Law Society of Upper Canada.  Merely being an Ontario lawyer or paralegal is not sufficient.

Any other individual in Ontario who represents a client in a U.S. renunciation matter (or any other U.S. legal matter) commits an offence under the Law Society Act and is subject to a fine of up to $25,000.00 for a first offense and $50,000 for each subsequent offence.  Unfortunately, the Law Society of Upper Canada does not enforce this law so the adage “buyer beware” applies here.

UPDATE: Since this article was first published, the Toronto Police Service has issued a press release, which appears to confirm that Justin Bieber was charged with a single count of simple assault.  As a result, even a conviction will not result in his inadmissibility to the United States.  Of course, the media has also just reported that the lab results from Mr. Bieber’s sobriety tests have confirmed marijuana and Xanax in his system at the time of his arrest in Florida.  This is more likely to result in his inadmissibility/deportability than his current charges in Canada.

Overview

The media is now reporting that Justin Bieber returned to Toronto and surrendered himself to the Metropolitan Toronto Police (52 Division) at about 7:30pm tonight (Toronto time).  He is expected to be charged with assault in connection with an incident that occurred in Toronto between the late evening on December 29, 2013 and the early morning on December 30, 2013.

At the time, the media reported that a member of Justin Bieber’s entourage had apparently assaulted a limousine driver who was driving the entertainer and several others.  It was unclear whether Justin Bieber was personally involved in the attack but the Metropolitan Toronto Police believed that he was in the limousine at the time of the attack.

In light of this imminent assault charge, it would be appropriate to revisit the issue of Mr. Bieber’s continuing ability to enter the United States if he is actually convicted of assault in Canada.

Assault in Canada

Unlike in the U.S, where criminal law is under the jurisdiction of each state, criminal law in Canada is under federal jurisdiction.  Most criminal offenses appear in the Canadian Criminal Code (“CCC”). [1] The offense of assault appears in CCC 265(1), which states that a person commits an assault when:

1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

The maximum penalty that will apply depends on whether the perpetrator uses a weapon, causes bodily harm, or if it is considered an aggravated assault.  However, details of the incident itself are limited so there is no way to determine whether the Mr. Bieber will be charged with simple assault or something more serious.

Applicable Ground of Inadmissibility

As mentioned in my previous blog post, while the grounds of deportability contained in the Immigration and Nationality Act (“INA”) determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  As Mr. Bieber has now returned to Canada, the grounds of inadmissibility contained in the INA will apply if he seeks to re-enter the United States.

According to INA 212(a)(2)(A)(i)(I), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (“CIMT”) or an attempt or conspiracy to commit such a crime, is inadmissible.  For Mr. Bieber’s assault conviction to result in inadmissibility, it would need to be considered a CIMT.

As I previously mentioned, the definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1]

Simple Assault

In the absence of further details, we can probably assume that Justin Bieber will be charged with simple assault.  Assuming that Mr. Beiber is convicted of simple assault, this would fall under CCC 266, which states that every one who commits an assault is guilty of:

1. An indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. An offence punishable on summary conviction.

This is considered a hybrid offense, which means that the Crown (i.e. prosecutor) can elect to treat the case as an indictable offense (i.e. felony) or as a summary conviction (i.e. misdemeanor).

The law is fairly well-established in the United States that simple assault is not considered a CIMT.[2]  Therefore, if he is convicted of simple assault, this should not render Mr. Bieber inadmissible to the United States.

Aggravated Assault, Assault with a Weapon, and Assault Causing Bodily Harm

These more serious forms of assault are a bit more complicated to assess, since the case law is not entirely consistent.  However, in Matter of Perez-Contreras[3], the BIA attempted to summarize these prior decisions and concluded that, for assault to be considered a CIMT, it would need to require intentional or reckless conduct.

Assault with a Weapon and Assault Causing Bodily Harm

If Justin Bieber is convicted of assault with a weapon or assault causing bodily harm, this would fall under CCC 267, which states that every one who, in committing an assault:

1. Carries, uses or threatens to use a weapon or an imitation thereof, or
2. Causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Although CCC 267 provides for enhanced penalties where the assault is committed with a weapon or ultimately causes bodily harm, it is not an element of the offense that the perpetrator act recklessly or intentionally with the objective of causing bodily harm.  Therefore, even assault with a weapon or assault causing bodily harm may not be considered CIMTs.

Aggravated Assault

If Mr. Bieber is convicted of the more serious offense of aggravated assault, it would fall under CCC 268, which states that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.  It also states that aggravated assault is an indictable offence with a maximum term of imprisonment not exceeding fourteen years.

This more serious form of assault still does not specifically state that it requires reckless or intentional conduct as an element of the offense.  The 9th Circuit specifically considered CCC 268 for the purposes of inadmissibility in Uppal v. Holder.[4]  In that decision, the court concluded that a conviction for aggravated assault under CCC 268 did not require that the perpetrator specifically intend to inflict serious physical injury, or any injury at all.  Under CCC 268, a perpetrator need not even recklessly disregard the risk of bodily harm or endangerment resulting from the assault. Instead, CCC 268 requires only that a reasonable person would know that the assault carries a risk of bodily injury or endangerment, which is a negligence standard.

Based on the above, it would appear that even aggravated assault under CCC 268 would likely not be considered a CIMT.  Therefore, if Justin Bieber is convicted of aggravated assault, it probably will not render him inadmissible either.

Conclusion

I can finally give Justin Bieber some good news.  Although his other conduct might eventually render him inadmissible to the United States, he does not need to worry too much about his assault charge.  It probably will not affect his ability to re-enter the United States.

——————————

[1] R.S.C., 1985, c. C-46.

[2] Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465(BIA 2011).

[3] 20 I. & N. Dec. 615 (BIA 1992).

[4] 605 F.3d 712 (9th Cir. 2010).

UPDATE: Since this article was first published, the media has reported that the lab test results from Justin Bieber’s sobriety tests have confirmed the presence of marijuana and Xanax in his system at the time of his arrest in Florida.  As a result, it appears likely that controlled substances charges will follow.  If he is convicted of such an offense, this will render him deportable (and inadmissible, if he is already outside the United States).  Even pending charges could make things difficult for Mr. Bieber when he tries to re-enter, since United States Customs and Border Protection could question him about his drug use when he applies for admission to the United States.  If he admits to drug use at that time, he can be barred.

Introduction

Canadian entertainer Justin Bieber appears to be receiving a lot of unwanted attention in the media lately and there has been an ongoing discussion regarding whether the United States Government should deport him.  The most recent development has been an online petition at www.whitehouse.gov, calling for Mr. Bieber’s removal from the United States.

As of January 29, 2014, more than 100,000 people have signed the online petition.  As this number has now reached 100,000 signatures, the petition will be reviewed by officials in the Obama Administration and an official response will be issued.

Although the existence (and success) of this online petition is certainly amusing, even when an official response is published, it is unlikely to satisfy the petition’s supporters.  This is because the White House does not have any real authority to deport an individual that it deems undesirable.

Rather than debating whether Justin Bieber should be deported, perhaps it is more appropriate to consider whether he can be deported.  I will endeavor to answer this question below.

Justin Bieber’s Legal Status in the United States

As have been reported by the media, Justin Bieber is currently a non-immigrant alien.  In other words, he is a foreign national (i.e. alien) who does not possess lawful permanent resident status (i.e. a green card) in the United States.

Mr. Bieber appears to hold O-1 status as an alien of extraordinary ability.  An O-1 alien is defined at §101(a)(15)(O)(i) of the Immigration and Nationality Act (“INA”) as an alien who:

has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability.

Of course, all aliens are subject to removal from the United States if they commit certain acts prohibited by the INA, including the commission of specific criminal offenses.

The Alleged Offences

Vandalism (California)

On January 9, 2014, the Police were summoned to Justin Bieber‘s home because a neighbor alleged that the entertainer had thrown as many as twenty eggs at both him and his house, causing $20,000 of damage.  Based on media reports, the Los Angeles County District Attorney’s Office is still considering whether to charge Mr. Bieber with felony vandalism. Vandalism in the State of California is covered by Section 594 of the California Penal Code (“PC”).

The media also reported that, when the Police Searched Mr. Bieber’s residence, they found controlled substances in the home.  However, the drugs were alleged to belong to rapper Lil Za, who was arrested instead of Mr. Bieber.

Driving under the Influence (“DUI”), Driving with an Invalid Licence, and Resisting Arrest without Violence (Florida)

On January 23, 2014, Justin Bieber was charged with DUI, resisting arrest without violence, and driving without a valid license after Miami Beach Police stopped him for street racing.  According to Miami Beach Police, Mr. Bieber admitted to having “consumed some alcohol, and that he had been smoking marijuana and consumed some prescription medication.”  A copy of the arrest affidavit appears online here.

Based on media reports, Mr. Bieber has been charged with DUI, driving with an invalid licence, and resisting arrest without violence.  DUI in the State of Florida is covered by Section 316.193 of the Florida Statutes (“FS”) and resisting an officer without violence is covered by FS 843.02.  Driving with a license that is suspended, revoked, canceled, or disqualified is covered by FS 332.34.

Of course, it is not known whether Mr. Bieber was charged with driving with an expired license (which is not a criminal offense) or driving while his license is suspended, revoked, canceled, or disqualified (which is a criminal offense).  However, at least one media report has stated that he was charged with driving with an expired license.

Mr. Beiber also allegedly made an admission to Miami Beach Police that he had smoked marijuana and consumed prescription medication.  However, he was not been charged with any controlled substance offense as a result of this admission.

Possible Removal for a Crime Involving Moral Turpitude (“CIMT”)

Overview

According to INA §237(a)(2)(A)(i), any alien who: (I) is convicted of a CIMT committed within five years after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed is deportable.  In addition, according to INA §237(a)(2)(A)(ii), any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined and regardless of whether the convictions were in a single trial, is deportable.

The definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1] For example, an inherently immoral act such as theft, fraud, sexual assault, or murder would clearly be a CIMT but a simple regulatory offense such as DUI typically would not be considered a CIMT.

Vandalism as a CIMT

Although it is likely that vandalism under PC 594 would not be considered a CIMT, some uncertainty still exists.  In Rodriguez-Herrera v. INS[2], the 9th Circuit found that the crime of malicious mischief in the State of Washington was not a CIMT because one could be convicted for destroying “as little as $250.00 of another’s property with merely an evil wish to annoy.”  However, it could theoretically be argued that vandalism causing $20,000 in damage could have been committed with more than a mere wish to annoy resulting in a finding of moral turpitude.

Since the alleged damage was more than $400.00, it is considered a “wobbler,” which means that the District Attorney could either charge Mr. Beiber with a misdemeanor or a felony (this is similar to a hybrid offense under the Canadian Criminal Code[3]).  Given the amount of the alleged damage, we will assume for the purposes of this discussion that the District Attorney would elect to charge Mr. Beiber with a felony, which may be punished by a sentence of between one and three years.

In summary, although a charge of felony vandalism could be punishable by at least one year of imprisonment, the balance of probabilities suggests that it would not be found to be a CIMT.  Therefore, even a conviction for felony vandalism would probably not result in Mr. Beiber’s removal from the United States under INA §237(a)(2)(A)(i), although one cannot be absolutely certain due to the vague definition of “moral turpitude.”

DUI as a CIMT

In order for a DUI offense to be considered a ground of deportability, it also must be considered a CIMT.  However, the law is well-settled that a simple DUI is typically not considered a CIMT.[4] Therefore, even a conviction for DUI under FS 316.193 should not result in Mr. Beiber’s removal from the United States under INA 237(a)(2)(A)(i).

Driving with an Invalid License as a CIMT

Driving with an expired license almost certainly not considered a CIMT.  Even driving with a license that is suspended, revoked, canceled, or disqualified under FS 332.34 is probably not considered a CIMT.  However, there is at least a small possibility that could be considered an aggravating factor that elevates Mr. Bieber’s DUI offense to a CIMT.

In Matter of Lopez-Meza, the BIA considered a conviction for aggravated DUI in the State of Arizona.  Under the Arizona statute, a person could be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI.  Although the BIA acknowledged that simple DUI was not a CIMT, it found that the serious misconduct described in the aggravated DUI offense involved “a baseness so contrary to accepted moral standards that it rose to the level of a CIMT.”

Of course, the Florida statute does not appear to consider driving with a suspended, canceled, or revoked license to be an aggravating factor in DUI cases.  So it is very unlikely that committing a DUI with a driver’s license that is suspended, canceled, or revoked will elevate the offense to a CIMT in the State of Florida.

Resisting an Officer without Violence as a CIMT

Resisting arrest is probably not considered a CIMT; resisting arrest without violence is almost certainly not considered a CIMT.  Therefore, it is unlikely that a conviction under FS 843.02 would result in Justin Bieber’s removal from the United States under INA 237(a)(2)(A)(i).

Removal for an Aggravated Felony

Overview

According to INA §237(a)(2)(A)(iii), any alien who is convicted of an aggravated felony at any time after admission is deportable.  The term “aggravated felony” is defined at INA §101(a)(43) and includes many serious offenses such as murder, rape, and sexual abuse of a minor.  However, the definition also states that “crimes of violence” (“COVs”), as defined in 18 U.S.C. §16, are also considered aggravated felonies if the term of imprisonment actually imposed (regardless of any suspension) is at least one year .  Section 16 defines a COV as “any offense that has an element the use or attempted use or threatened use of physical force against the person or property of another” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property against another may be used in the course of committing the offense.”  The state’s designation of the offense as a misdemeanor does not preclude it from being considered an aggravated felony, since federal law controls.

Vandalism as an Aggravated Felony

It is likely that vandalism would not be considered a COV, especially if it consisted of simply throwing eggs at a neighbor’s house.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is charged and convicted.

DUI as an Aggravated Felony

DUI has been found not to be a COV, even if it causes serious bodily injury.[5] In addition, the maximum penalty for a first offense is six months of imprisonment; even in the case of a second offense, the maximum penalty is nine months of imprisonment.  Clearly, it is not possible to receive a sentence of one year.  Therefore, a conviction for DUI under FS 316.193 should not be considered an aggravated felony.

Resisting Arrest without Violence as an Aggravated Felony

Although the 9th Circuit has found resisting arrest to be a COV under Arizona law,[6] resisting arrest without violence in the State of Florida is very different, since it only includes conduct where no violence was involved.  Resisting arrest without violence is likely analogous to evading a police officer, which has been found not to be a COV.[7] However, it is a first degree misdemeanor, punishable by up to one year of imprisonment.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is convicted.

Removal for an Controlled Substance Possession

According to INA §237(a)(2)(B)(i), any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act[8]), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana, is deportable.  Although at the present time, Mr. Bieber has not been charged with any controlled substance offense, if he is charged and convicted of possession of a controlled substance (either for unlawful possession of prescription drugs or for possession of more than thirty grams of marijuana), he would be removable from the United States.

At the present time, the Miami Beach Police only have his admission that he had smoked marijuana earlier; there is no evidence that any controlled substances were in his possession at the time.  In addition, although controlled substances were found in his California residence, they have been attributed to Lil Za, so it is not likely that he will be charged because of that incident.  As a result, it is unlikely that Justin Bieber will be convicted of a controlled substance offense unless further evidence becomes available.

Admission to Possession of a Controlled Substance

As mentioned above, INA §237(a)(2)(B)(i) applies only to controlled substance convictions.  However, he could still be denied admission to the United States if he leaves and attempts to re-enter the United States.  While the grounds of deportability contained in the INA determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  These grounds are similar but not identical to each other.

According to INA §212(a)(2)(A)(i)(II), any alien who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.  Clearly, a mere admission can result in inadmissibility, although there are specific rules governing admissions.

For example, an adequate definition of the offense must typically be provided to the alien who must then admit all of the essential elements.[9] In addition, the admission must typically be made before an immigration officer, although an admission made to a police officer could be sufficient to result in inadmissibility under INA §212(a)(2)(A)(i)(II).[10]

As I previously mentioned when commenting on the potential inadmissibility of Toronto Mayor Rob Ford, since Justin Bieber’s admission of marijuana use to the Miami Beach Police has now become public knowledge, he could have problems seeking readmission to the United States in the future.  Even if his admission to the Miami Beach Police does not satisfy legal requirements for it to be considered a ground of inadmissibility, there is nothing preventing from United States Customs and Border Protection (“USCBP”) from questioning him at length during his next application for entry.  If he then admits to USCBP that he was previously in possession of a controlled substance, he could be denied admission pursuant to INA §212(a)(2)(A)(i)(II), in the same manner as someone who had actually been convicted of such an offense.  At that point, he would not be allowed back into the United States until he obtained a temporary waiver of inadmissibility.

Conclusion

At the present time, it appears unlikely that Justin Bieber could be deported for any of the offenses for which he has been charged.  However, there is a very real possibility that Mr. Bieber could be questioned by USCBP the next time he tries to re-enter the United States.  If he admits to controlled substance possession at that time, he may very well find himself barred from the United States.

————————————————

[1] Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[2] 52 F.3d 238 (9th Cir. 1995).

[3] R.S.C., 1985, c. C-46).

[4] Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

[5] Leocal v. Ashcroft, 543 U.S. 1 (2004).

[6] Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007).

[7] Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008).

[8] 21 U.S.C. 802.

[9] See Matter of J, 2 I. & N. Dec. 285 (BIA 1945), Matter of K, 7 I. & N. Dec. 594 (BIA 1957), and Matter of Amar Kumar Pani, 19 Immig. Rptr. B1-142 (BIA 1998).

[10] Matter of K-, supra.

Blaney McMurtry partner Henry J. Chang was recently chosen by Who’s Who Legal as one of the top 15 most highly regarded corporate immigration lawyers in the World for 2013, in its annual worldwide research of law firms. Who’s Who Legal is the Official Research Partner of the International Bar Association and Strategic Research Partner of the ABA Section of International Law.

In addition to this recognition, Mr. Chang is also listed as a leading practitioner in the field of immigration law the Lexpert Canadian Legal Directory, recognized as an expert in immigration law by Best Lawyers, and holds an AV (Preeminent) peer rating from Martindale Hubbell in the field of immigration law.

Introduction

The media recently reported on an incident involving a British Columbia woman who admitted to a United States Customs and Border Protection (“USCBP”) officer that she had recently smoked marijuana.  Although she had never been convicted of any criminal offense, this admission alone was sufficient grounds to ban her from entering the United States.  The incident raised some interesting legal points, many of which will apply equally to business travellers.  A more detailed discussion of these issues appears below.

Applicable Law

The Immigration and Nationality Act of 1952[1] (“INA”) contains several distinct grounds of inadmissibility, which relate to criminal conduct; many of these grounds of inadmissibility apply even where no conviction occurs.  For example, INA §212(a)(2)(A)(i) states that any alien (i.e. foreign national) who is convicted of, or who admits having committed, or who admits to having committing acts which constitute the essential elements of:

(I) A crime involving moral turpitude[2] (other than a purely political offense) or an attempt or conspiracy to commit such a crime; or

(II) A violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance;

is inadmissible.  The majority of criminal offenses that result in inadmissibility to the United States will fall under INA §212(a)(2)(A)(i).

Once a foreign national is found to be inadmissible based on an admission, they are treated in the same manner as someone who has actually been convicted of the crime.  In other words, the foreign national will require a non-immigrant waiver of inadmissibility under INA §212(d)(3) before they may enter the United States again.

Of course, not all admissions legally result in inadmissibility to the United States.  In the precedent decision of Matter of J[3], the Board of Immigration Appeals (“BIA”) concluded that the following rules needed to be observed in admission cases involving moral turpitude offenses:

a) It must first be established that under the law where the act was alleged to have been committed that it is a crime.

b) An adequate definition of the crime, including all essential elements, must first be given to the alien.  This must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable terms.

c) The alien must then admit all the factual elements, which constitute the crime.

d) The alien must thereafter admit the fact that he has committed the crime – in other words, the legal conclusion.[4]

e) The admission by the alien of the crime must be explicit, unequivocal, and unqualified.

f) It must also appear from the statute and statements of the alien that the crime which he has admitted committing involves moral turpitude.  It is not necessary that the alien admit that the crime involves moral turpitude.

In the subsequent precedent decision of Matter of K, the BIA again confirmed that a valid admission of a crime for immigration purposes requires that the alien be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms.  The BIA affirmed the rules described in Matter of J, except it clarified that under the current statute it was no longer necessary for the alien to admit the legal conclusion that he had committed the particular crime.  As the alien in that case was not given any definition of the crime and was not advised of the essential elements of that offense, the BIA held that he had not made an admission that would result in his inadmissibility.

The above rules were considered in relation to controlled substance violations in Matter of Amar Kumar Pani[5].  In that case, the alien was a citizen of India and a landed immigrant of Canada who held J-1 status.  Upon returning to the United States, he was detained after U.S. Customs officials found 32 grams of marijuana in his possession.  However, no criminal charges were ever filed.  The BIA affirmed the principles described in Matter of K.  The former Immigration and Naturalization Service had attempted to distinguish this line of cases on the basis that they related to crimes involving moral turpitude rather than controlled substance offenses.  However, the BIA disagreed.  A similar conclusion was reached in Matter of Luis Fernando Estrada-Gonzales[6], where the alien was found to be in possession of 4 grams of marijuana and 0.5 grams of cocaine at the time of his application for admission.  Clearly, the principles described Matter of J, as modified by Matter of K, are equally applicable to controlled substance violations.

Notwithstanding the above decisions, in practice, USCBP officers at ports of entry tend to ignore the technical requirements described in the above decisions.  If a foreign national admits to a USCBP officer that they have committed an offense involving moral turpitude or a controlled substance, they can expect to be barred from the United States.

Although it may be possible to argue the technical requirements of the above BIA decisions during a removal hearing (if available), even if the foreign national successfully argues that his or her initial admission did not result in inadmissibility, USCBP will still know that the offense was committed.  Nothing prevents USCBP from asking about the offense again during the foreign national’s next trip to the United States.  At that time, USCBP officers can take appropriate steps to ensure that they comply with the requirements of the above BIA decisions.  Once the foreign national admits to the offense under those circumstances, it will fall under INA §212(a)(2)(A)(i) and they will require a non-immigrant waiver of inadmissibility at that time.

Responding to USCBP Questions

Silence or failure to volunteer information does not constitute a material misrepresentation under INA §212(a)(6)(C)(i).  However, a truthful but incomplete answer can constitute a material misrepresentation if it “tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.”[7] In light of the above, it is not advisable to falsely deny the prior commission of an offense or to conceal it by providing truthful, but incomplete, responses to USCBP’s questions.

If a foreign national is asked if they have ever committed an offense (whether or not it resulted in a conviction), where there is clearly no rational basis for the question being asked, they may wish to consider the option of politely telling the USCBP officer that the question is inappropriate and that they do not wish to answer it.  Although USCBP officers have considerable discretion regarding what questions they may ask when determining the admissibility of arriving travellers, those travellers are not legally compelled to answer questions.

A foreign national who refuses to answer USCBP’s questions will almost certainly be denied admission to the United States; they will also encounter problems if they attempt to enter the United States in the future.  However, the foreign national will at least have the opportunity to seek advice from legal counsel before applying for admission to the United States again.  Although legal counsel may ultimately recommend that the foreign national admit to the offense and seek a non-immigrant waiver of inadmissibility, at least the decision to do so will be based on sound legal advice.

Of course, a distinction should be made between USCBP officers based at Canadian Airports and USCBP officers located along the Canada-U.S. border.  USCBP officers at Canadian Airports do not have the right to detain foreign nationals; the most that they can do is deny that person’s admission to the United States.  However, USCBP officers along the Canada-U.S. land border have greater powers because they are located within United States territory.  For example, USCBP officers along the Canada-U.S. border have the ability detain arriving travellers during inspection and the ability to impose a five-year expedited removal order under INA §235(b)(1).

That said, a foreign national’s mere refusal to respond to a question that they claim is inappropriate, without further evidence, should not ordinarily result in an expedited removal order; it is more likely that the foreign national will simply be denied entry and returned to Canada.  Of course, if faced with an expedited removal bar, it may be preferable to just admit to the offense and undertake to apply for a non-immigrant waiver.

Conclusion

In summary, foreign nationals who are arbitrarily asked if they have every committed a criminal offense may wish to consider the option of refusing to answer the question and requesting permission to withdraw their application for admission.  Once the foreign national has returned to Canada, they can seek legal advice and, if necessary, apply for a non-immigrant waiver before requesting admission to the United States again.

———————————–
[1] Pub. L. 82–414, 66 Stat. 163.

[2] The term “moral turpitude” generally refers to inherently immoral acts such as theft, fraud, etc.

[3] 2 I. & N. Dec. 285 (BIA 1945).

[4] This particular requirement was later eliminated as a result of Matter of K, 7 I. & N. Dec. 594 (BIA 1957).

[5] 19 Immig. Rptr. B1-142 (BIA 1998).

[6] 24 Immig. Rptr. B1-249 (BIA 2002).

[7] Matter of S- and B-C, 9 I. & N. 436.