A graphic image depicting the measurement of risk in business.

President Donald Trump signed an Executive Order on January 27, 2017 placing a 90 day ban on entry into the United States of individuals from 7 countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen.  This could pose a problem for individuals in Canada who have previously been approved for the NEXUS trusted traveler program.  If NEXUS Membership Card holders with citizenship from one of the 7 countries, nationality or dual-nationality of one of the 7 countries, and/or were born in one of the 7 countries attempt to travel to the United States, they may have their NEXUS Cards taken away at the border (or Canadian pre-clearance area).  It is time to exercise caution if planning to travel to the United States.  There are many Iranian Canadians with NEXUS Membership approvals who have passed the NEXUS approval procedures and are trusted travelers.

The problem is that a NEXUS Membership Card may be cancelled or revoked at the discretion of the United States government or the Canadian Minister of Public Safety and Emergency preparedness.  The NEXUS Program is a discretionary program – meaning that the governments have discretion to grant and revoke/cancel memberships.  One of the basis for revoking or cancelling a NEXUS Membership is an immigration law violation.  Another basis for cancelling a NEXUS Membership is that the traveler is no longer eligible or considered to be “of good character”.  While a breach of a law is a question of law, the interpretation of the law involves discretion of front-line officers.  With NEXUS, it is common for USCBP Officers to exercise their discretion to cancel a NEXUS Membership and leave it to the traveler to appeal the decision.

We have seen a number of cases late in 2016 and early 2017 where Canadian NEXUS Card holders have had their NEXUS Cards confiscated at Toronto Pearson Airport by U.S. Customs and Border Protection for alleged immigration violations.  Some of the NEXUS Card holders had valid work visas to work in the United States.  One client had lived in the United States, worked in the United States, had a valid work visa and was merely attempting to renew his visa for another year.  This client had his current visa cancelled at Toronto Pearson Airport and could not enter the United States to work or get his things from his apartment.

Other clients were told by U.S. Customs at Toronto Pearson Airport that they needed a visa to enter the United States as the work they performed was not in any NAFTA exemption.  Other clients were told that the US CBP officer did not believe that they were traveling for a holiday (but rather for business purposes). Other clients were told that they had not breached any laws, but that their NEXUS Cards were being confiscated for review purposes.

We have seen many (too many) cases where individuals have had their NEXUS Cards confiscated by U.S. Customs at Toronto Pearson Airport, Calgary Airport and Vancouver Airport on the basis that they were avoiding a kiosk printout to go to secondary inspection. We would attempt to explain the inexplicable if only some of the reasons given had logic.  We give these examples of problems before the announcement of the “temporary” entry ban.

The entry ban may be used as a reason to confiscate NEXUS Cards from trusted travelers. The US Customs officers might perceive any travel to the United States by an individual with a nexus to Iran, Iraq, Libya, Syria, Somalia or Yemen as attempting to get around the restrictions if they use their NEXUS Card.

What to Do?

  1. Exercise caution by not traveling to the United States until the entry ban period(s) has expired.
  2. Contact the United States Embassy or a U.S. Consulate in Canada to ask about whether your travel is banned or whether there is a visa you can apply for.
  3. Contact a U.S. immigration lawyer to ask whether your travel would be banned or whether there is a visa you can apply for.
  4. Do not use your NEXUS Card for travel to the United States (however your status can be revoked or cancelled even if you do not use a NEXUS Card for entry).
  5. If your NEXUS Card is cancelled, file an appeal with the U.S. CBP Ombudsman (but put effort into preparing the appeal to show that you are a trusted traveler).
  6. Contact the Minister of Public Safety & Emergency Preparedness (Mr. Ralph Goodale) if your NEXUS Card is confiscated by U.S. Customs and let the Government of Canada know about the way the U.S. is exercising its discretion.
  7. Contact your Local MP.
  8. Contact us so that we can write about your story and help others.

It is too early to be able to provide satisfactory answers to difficult questions.  We are better able to help individuals when we know specific facts. Please contact Cyndee Todgham Cherniak at 416-307-4168 or cyndee@lexsage.com.  There is more information about the NEXUS Program at www.lexsage.com.