California Bar Journal
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Our porous Canadian border
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James M. ByrneThe events of Sept. 11h have highlighted aspects of U.S. immigration law that tended to be largely ignored. Prior to the events of that day, the focus of the U.S. government was generally on illegal immigration from our southern border with Mexico. However, the focus has now shifted to our northern border and terrorists entering the U.S. from Canada and through our airports. The question now has become how do we stop them from entering the U.S. and what do we do when we catch them?

There are two important facts in particular that I would like to highlight. First, last year an Algerian national living in Canada with a Canadian passport was arrested at a ferry terminal in Washington state after boarding a ferry from Vancouver Island in British Columbia in a vehicle loaded with explosives.

Second, up to 16 of the alleged hijackers in the Sept. 11 attacks were Saudi Arabian nationals that entered the U.S. on valid visas.

The recently enacted USA Patriot Act of 2001 addresses parts of the Canadian border issue by authorizing funds to triple the size of U.S. Border Patrol on the Canadian border. More importantly, the Canadian government must cooperate with U.S. immigration authorities in providing information on who Canada is letting into its country.

It is Canada's choice who it decides to let into its country, but our security demands must be taken into consideration. Access to fake Canadian documents can allow unfettered movement across our border. Even obtaining legitimate documents through the use of aliases poses a serious threat. Legitimate Canadian concerns about its sovereignty must give way to our mutual security needs.

Another area of concern is the use of U.S. tourist and student visas. Prior to the events of Sept. 11, it was relatively easy for Saudi citizens to get these sorts of visas to enter the U.S. The U.S. State Department has now announced a 21-day delay in the issuance of these visas to nationals of predominantly Muslim countries. This should have a great impact in dealing with easy access into the U.S. However, access into Canada should also be limited. 

Although the above-mentioned features of the U.S. response to terrorism were justified, other features of the U.S. response are very disturbing to me, as well as to many other Americans. Secret military tribunals and seven-day detention without charging the suspects with any immigration offense is a gross overreaction to the current situation.

Even before these measures were put into place, U.S. authorities had already arrested approximately 1,000 individuals on immigration charges. Most of those arrested are ethnic Arabs. The immigration violations of many are apparently minor. In fact, before Sept. 11, they would most likely have been released from custody on bond. If these people had nothing to do with the events of Sept. 11, why haven't they been released?

Does anyone even care? Or do we all laugh along, as in the film "Casablanca," as the Vichy French police official played by Claude Raines yelled when any sort of crime was committed, "Round up the usual suspects."

James M. Byrne is a partner with the San Francisco law firm of Byrne Bogue & Byrne. He specializes in immigration law.