Law Times

Law Times • sepTember 24, 2018 Page 11 www.lawtimesnews.com CBA section has protested the initiative CBSA may face legal challenge over flagpoling project BY MICHAEL MCKIERNAN For Law Times T he Canada Border Ser- vices Agency could face a legal challenge if it con- tinues to expand its f lag- poling project limiting services to immigrants who seek to validate or renew their status in Canada at the country's land borders. Immigration lawyers say long delays for inland processing of permanent residence applica- tions and work or study permit renewal by Immigration Refu- gees and Citizenship Canada have made f lagpoling a long- standing preferred option for many Canadian residents. The practice involves trav- elling to the U.S. border, im- mediately turning around and re-entering Canada at the same port, where officers can process certain permits on the spot. However, the pilot project, launched in June 2017, limited same-day processing of f lagpol- ing cases to Tuesdays, Wednes- days and Thursdays at ports of entry in the Niagara Region of southern Ontario, home to the busy Rainbow Bridge, Peace Bridge and Queenston-Lewis- ton crossings to New York State. The Canadian Bar Associa- tion's immigration law section wrote to the federal ministries of immigration and public safety in November last year to protest the project, following its expansion to include ports at St. Bernard-de- Lacolle and St-Armand/Philips- burg in Quebec. Although Barbara Jo Caruso, chairwoman of the CBA's law section, claims the pilot project is unlawful, she says the CBA has so far focused on a "collab- orative approach" to solving the issue, with recommendations including reductions to inland processing times and loosening of travel restrictions for those temporary residents whose ap- plications are pending. However, Caruso, the co- founder of Toronto's Corporate Immigration Law Firm, says pa- tience among immigration law- yers may be running out. "We have had some members coming to us who are eager to take a case to court," she says. "As an association, we've made the decision to put pres- sure on the government in oth- er ways to make changes, but I think if the project starts to spread to more ports, there's a good chance we will actually see it land in court." According to Caruso, denials of service by border agents run contrary to s. 3(1) of the Immi- gration and Refugee Protection Act, as well as ss. 198 and 200 of the Immigration and Refugee Protection Regulations, which together she says guarantee foreign nationals the right to be processed at a port of entry if they can show they meet the requirements of a particular cat- egory. A CBSA spokesperson de- clined to comment to Law Times, stating that it was not the agency's practice "to respond to third-party statements." Caruso says she understands the CBSA's desire to ease its workload, particularly over the weekend, when the volume of traffic across the border peaks. "In fairness to the CBSA, they are a very large organization with a very large jurisdiction," she says. "Immigration is just one of many aspects of their responsi- bility, but they need to figure out how to resource it. Telling people not to show up on certain days is not the way to go about it. "It's more than just an incon- venience; it causes stress and puts people in a position of not being able to work, which costs them, their employers and the Canadian economy," Caruso adds. Even people who show up during the appointed times dur- ing the pilot are not guaranteed same-day service, she says, not- ing that some have reported long delays at off-peak times, includ- ing some who were asked to re- turn the following day. Lawyers have also said cli- ents were even denied service at ports not included in the pilot project. "It's frustrating to sit for hours in a waiting area at the border that doesn't look very full," Ca- ruso says. "One of the things we have asked is that they let people schedule a landing in advance using the same interview book- ing system they're already using for NEXUS interviews." Ottawa immigration lawyer Arghavan Gerami says she can't remember a time when f lagpol- ing wasn't an option for tempo- rary residents of Canada in need of processing. "It's very concerning in terms FOCUS Barbara Jo Caruso says a CBSA pilot project is unlawful, and there may be a court chal- lenge that emerges because of it. 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