Procedural Fairness Letter - Entry denial at US border

[ma5590]

Hi everyone,

Unfortunately I am in a very bad situation and very worried about my outcome which is rejection and ultimately a 5 year ban as per section(40) of the Immigration and Refugee Act.

Although I did have a US visa, when I went to flagpole to the United States for my PGWP, I told the officer that I had no intention of entering the United States and was therefore given a "Administrative Refusal" to return back to the Canadian Border. I received my PGWP at the Canadian border and all's was well.

When I submitted my application for Permanent Residency, in the statuary question "Have you been denied entry to Canada or any other country?" I answered "NO" thinking what happened at the US border wasn't considered a denial of entry but more of a voluntary refusal. Well, that's not how IRCC is looking at it and last week I was given a Procedural Fairness Letter saying that I have been untruthful in my application and has given me a chance to provide explanation to the VO's concerns.

I know responding to the PFL is THE last chance of trying to convince the officer that I had misinterpreted the question and saving myself from a potential ban. Right away, I have hired experienced lawyers who deals with Procedural Fairness Letters and are currently drafting up a response to be sent to the officer. They are actually thinking of asking for an extension given the VO has only given me 7 days to respond to the PFL. I also don't have the documentation provided to me at the Canadian Border and therefore I have filed for a FOIA request to the US government to provide all my prior history at the US border.

Does anyone have any other advice for me regarding this matter and also if anyone has any previous experience dealing with this? I would really appreciate any input from anyone.

Thanks!

 

[EscoBlades]

Flagpoling does not constitute a formal refusal of entry to the US, so this is an extremely odd reason to receive a PFL for. If you search the forum, you’ll see a number of stories of folks who declared their flagpole trips, and received PR.

FOIA requests can, and usually take far longer than the amount of time you have left to respond. My only suggestion at this point is for your lawyer to draft up a really good letter in response, highlighting how flagpoling to renew legal status in Canada, does not result in formal denied entry to the US, and is something lots of temp foreign works and students do regularly here.

IRCC should know this, so it is very concerning that the officer singled that out. Was there any other incident (US or otherwise) that you might have forgotten? Can you provide the exact text in the PFL? (sans any personal information)

 

[scylla]

Hi everyone,

Unfortunately I am in a very bad situation and very worried about my outcome which is rejection and ultimately a 5 year ban as per section(40) of the Immigration and Refugee Act.

Although I did have a US visa, when I went to flagpole to the United States for my PGWP, I told the officer that I had no intention of entering the United States and was therefore given a "Administrative Refusal" to return back to the Canadian Border. I received my PGWP at the Canadian border and all's was well.

When I submitted my application for Permanent Residency, in the statuary question "Have you been denied entry to Canada or any other country?" I answered "NO" thinking what happened at the US border wasn't considered a denial of entry but more of a voluntary refusal. Well, that's not how IRCC is looking at it and last week I was given a Procedural Fairness Letter saying that I have been untruthful in my application and has given me a chance to provide explanation to the VO's concerns.

I know responding to the PFL is THE last chance of trying to convince the officer that I had misinterpreted the question and saving myself from a potential ban. Right away, I have hired experienced lawyers who deals with Procedural Fairness Letters and are currently drafting up a response to be sent to the officer. They are actually thinking of asking for an extension given the VO has only given me 7 days to respond to the PFL. I also don't have the documentation provided to me at the Canadian Border and therefore I have filed for a FOIA request to the US government to provide all my prior history at the US border.

Does anyone have any other advice for me regarding this matter and also if anyone has any previous experience dealing with this? I would really appreciate any input from anyone.

Thanks!

It's a very unusual situation. Hiring the lawyer is the right move. Submitting the FOIA request is also the right move. Given you no longer have the paperwork, are you 100% sure you were given an Administrative Refusal and not something else? Have you ever had issues with entry to the US or a refused US visa at any other time that you may have forgotten?

The only other suggestion I have is that your lawyers might want to consider submitting a short explanation of the circumstances along with requesting the 7 day extension (with the more detailed letter to follow).

 

[ma5590]

No I have not been denied entry or denied visa to ANY other country. That is the only situation where I was accusingly "denied" entry.

I have reason to believe you have been untruthful in your application specifically when asked in your statuory questions for the above noted application submitted on 20XX/XX/XX where you were asked have you "Been refused admission to, or ordered to leave, Canada or any other country?" You answered NO.

Obligation - answer truthfully

Section 16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. (Immigration Refugee Protection Act)

Your answer to the above question is reasonably required to ascertain you admissibility to Canada and if you directly or indirectly misrepresented or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act it may constitute Misrepresentation a serious offence under the Immigration Refugee Protection Act.

Specifically, that on about 20XX/XX/XX you may have been refused admission or ordered to leave another country. Please provide all material information about your entry or exits in another country on or about the date noted including any enforcement orders and conditions, denial letters provided and any statement to the relevant matters in connection to this entry or exit.

 

[ma5590]

As you can see in the above PFL letter, the office is specifically asking for that one date where I 'may' have been denied entry.

That is the exact day I have received my PGWP and also my biometrics have also been provided at the border at the same day. I believe this is something the officer can look up in their system to understand my reasoning that I was only there to do flag poling. Also in my LOE for my PR application I did mention in the travel history that I went to the US on that day to do flagpoling. Unfortunately, I did not mention that I was denied entry since I didn't really think it was denied entry.

Before leaving the border, I asked the CBP officer if this will effect my future travels to the US and they said NO. This is pretty routine where students do this for their PGWP.

 

[scylla]

No I have not been denied entry or denied visa to ANY other country. That is the only situation where I was accusingly "denied" entry.

I have reason to believe you have been untruthful in your application specifically when asked in your statuory questions for the above noted application submitted on 20XX/XX/XX where you were asked have you "Been refused admission to, or ordered to leave, Canada or any other country?" You answered NO.

Obligation - answer truthfully

Section 16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. (Immigration Refugee Protection Act)

Your answer to the above question is reasonably required to ascertain you admissibility to Canada and if you directly or indirectly misrepresented or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act it may constitute Misrepresentation a serious offence under the Immigration Refugee Protection Act.

Specifically, that on about 20XX/XX/XX you may have been refused admission or ordered to leave another country. Please provide all material information about your entry or exits in another country on or about the date noted including any enforcement orders and conditions, denial letters provided and any statement to the relevant matters in connection to this entry or exit.

I have no further suggestions to add. This is really strange. Work with your lawyers and good luck.

 

[ma5590]

I have no further suggestions to add. This is really strange. Work with your lawyers and good luck.

Is it fair to ask for a extension while also providing a reasonable explanation? I'm worried IF they deny the time extension, my case will be closed and the ban enforced.

Its actually quite unfair for them to give just 7 days to respond given that we are in a global pandemic and consulting and retaining a lawyer takes time now. You cant just walk into a lawyers office anymore now a days.

Also, I have been reading a lot of cases (on here and CanLII) where the PA forgot to mention prior visa refusals in their application and the judge has rejected the judicial review. I'm afraid I will fall under the same category although I mine is entry for flagpoling instead of visa refusal.

 

[Vengayam]

Ohh, this is strange!! I was also entry denied for flagpole purpose. I mentioned ' NO' to the Statutory question. Few months ago, I sent webform stating that I got entry denied at USA border for Flagpolling for my new work permit and My intension was not to visit USA and followed the protocol of flagpolling procedures.

As per experts, better consult with Lawyer and draft a very good LOE explaining your situation. Hoping this will pass through.

 

[EscoBlades]

The response period given for a PFL is at the discretion of the officer issuing the letter, based on the reasoning for the PFL in the first place. You’ll probably have no luck asking for an extension. You simply have to work with your lawyer, QUICKLY, to present a compelling response. In your case, maybe you can include proof/ screenshots of your attempt to get your US Border information via FOIA. State that you were clearly informed at the border that Administrative Refusal did not constitute a denial of entry.

A PFL is the the officer giving you the FINAL chance to prove that you haven’t misrepresented yourself, as they are close to refusing your application. Not all applicants get the opportunity, so make it count. Work with your lawyer to respond quickly, asking for an extension or a judicial review is pointless at this stage, and won’t delay their decision in the short term.

 

[EscoBlades]

FWIW, I requested my I-94 travel record from the US Customs and Border Protection back when I was about to submit my application, as I wanted to cross check my travel history entries to ensure I wasn't missing anything. I flagpoled 3 times at the Canada-US border to renew work permits, and there is a record of those visits in my I-94, but none of them were listed as refusal of entry. So I'm almost certain that someone has messed up an entry in your record somewhere, probably on the US side.

 

[ma5590]

The response period given for a PFL is at the discretion of the officer issuing the letter, based on the reasoning for the PFL in the first place. You’ll probably have no luck asking for an extension. You simply have to work with your lawyer, QUICKLY, to present a compelling response. In your case, maybe you can include proof/ screenshots of your attempt to get your US Border information via FOIA. State that you were clearly informed at the border that Administrative Refusal did not constitute a denial of entry.

A PFL is the the officer giving you the FINAL chance to prove that you haven’t misrepresented yourself, as they are close to refusing your application. Not all applicants get the opportunity, so make it count. Work with your lawyer to respond quickly, asking for an extension or a judicial review is pointless at this stage, and won’t delay their decision in the short term.

Thank you very much for your prompt reply. Yes, I do have screenshots of the FOIA requests along with I-94 Entry/Exits made at the US border. In the specific time the officer bought up the denial, my I-94 clearly states 'ARRIVAL' along with the border location but there is not mention of 'DEPARTURE'

@EscoBlades during your flagpoling did you enter the US officially? If not, do you have a 'DEPARTURE' stated on your I-94?

My lawyer is very adamant about asking for an extension since he wants to build a very solid case for the response. According to him 99% of the time extensions get approved. I have a call scheduled with him in an hour and will bring the extension topic up again. I will be asking why do they need the extension of time and what compelling argument will be made during the extended time that cannot be made now?

 

[EscoBlades]

Thank you very much for your prompt reply. Yes, I do have screenshots of the FOIA requests along with I-94 Entry/Exits made at the US border. In the specific time the officer bought up the denial, my I-94 clearly states 'ARRIVAL' along with the border location but there is not mention of 'DEPARTURE'

@EscoBlades during your flagpoling did you enter the US officially? If not, do you have a 'DEPARTURE' stated on your I-94?

My lawyer is very adamant about asking for an extension since he wants to build a very solid case for the response. According to him 99% of the time extensions get approved. I have a call scheduled with him in an hour and will bring the extension topic up again. I will be asking why do they need the extension of time and what compelling argument will be made during the extended time that cannot be made now?

Firstly i would say listen to your lawyer in that case. They are a professional, and I am not.

Secondly, my I-94 shows 'INBOUND' on my record. Technically, we were directed to drive a few yards into the US then turned right around. My I-94 does not show any outbound entry for that date, but my ATIP travel history from the CBSA does show an inbound entry into Canada for that corresponding day.

 

[ma5590]

Firstly i would say listen to your lawyer in that case. They are a professional, and I am not.

Secondly, my I-94 shows 'INBOUND' on my record. Technically, we were directed to drive a few yards into the US then turned right around. My I-94 does not show any outbound entry for that date, but my ATIP travel history from the CBSA does show an inbound entry into Canada for that corresponding day.

Thank you for your quick response. Talking to someone else during this time helps put my mind at ease a lot.

I don't think having my ATIP travel history for CBSA will be needed since the VO can easily access it and also I have a stamp on my passport showing that I have entered back into Canada on that day.

Just boggles my mind, that a small mistake which might or might not be caused by myself, will kick me out of Canada! I have witnessed people with DUI's and living without a status for YEARS get their PR application accepted. Hard for me to comprehend what's going on with my situation.

 

[EscoBlades]

Thank you for your quick response. Talking to someone else during this time helps put my mind at ease a lot.

I don't think having my ATIP travel history for CBSA will be needed since the VO can easily access it and also I have a stamp on my passport showing that I have entered back into Canada on that day.

Just boggles my mind, that a small mistake which might or might not be caused by myself, will kick me out of Canada! I have witnessed people with DUI's and living without a status for YEARS get their PR application accepted. Hard for me to comprehend what's going on with my situation.

You absolutely don't need your CBSA travel history, i simply requested mine to ensure I was putting exact dates in for my application.

That said, I have always gone under the assumption that just because a VO can easily access information, doesn't always mean they will access said information. In situations like this, the more info you can provide them, the better. In their mind, the onus, and burden of proof, is always on the applicant. Sadly, even when they make mistakes, like it appears to be in this case.

Best of luck and I hope they rectify this asap.

 

[ma5590]

The response period given for a PFL is at the discretion of the officer issuing the letter, based on the reasoning for the PFL in the first place. You’ll probably have no luck asking for an extension. You simply have to work with your lawyer, QUICKLY, to present a compelling response. In your case, maybe you can include proof/ screenshots of your attempt to get your US Border information via FOIA. State that you were clearly informed at the border that Administrative Refusal did not constitute a denial of entry.

A PFL is the the officer giving you the FINAL chance to prove that you haven’t misrepresented yourself, as they are close to refusing your application. Not all applicants get the opportunity, so make it count. Work with your lawyer to respond quickly, asking for an extension or a judicial review is pointless at this stage, and won’t delay their decision in the short term.

Just got done talking to my lawyer. He has prepared an extension letter but is confident that the VO will give additional time if required.

"Due to disruption of regular business hours and procedures associated with the current COVID-19 pandemic, it will take some time for us to gather and review the relevant documents related to XXXX's application so we can respond to the letter appropriately. As such, XXX and our firm require ample time until we are able to gather and review the documents required before we can fully address the concerns raised in the PFL."

We have also referenced two federal court cases where the importance of extension of time was focused on and the judge has sided with the applicants position: https://canlii.ca/t/445p https://canlii.ca/t/1sr60

Just passing on some information if anyone was hesitant on asking for an extension of time.