Strengthening North American perimeter security: an analysis of United States and Canadian immigration and refugee laws and the collaboration required to harmonize those laws.

Author:Centner, Adam
Position:35th Annual Henry T. King Conference: The US-Canadian Border Action Plan
 
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"If long-term enemies like France and Germany can establish a common perimeter around Europe, surely long-term friends like Canada and the United States can establish one in North America."

--Fred McMahon (1)

  1. INTRODUCTION

    The United States and Canada are the largest trading partners in the world. (2) Every day, almost two billion dollars worth of goods and services cross the United States-Canada border. (3) Yet, in the decade since September 11, the flow of trade across the border has been restricted by tighter and tighter security controls, imposed primarily by the United States. (4)

    The North American perimeter security concept aims to facilitate trade across the border while maintaining the necessary national security measures to keep both countries safe. This concept would essentially eliminate barriers to the movement of people and goods across the shared border by relocating inspections and enforcement activities to continental ports of entry. Implementing such a concept would require a great deal of coordination and collaboration between American and Canadian officials in a number of areas, including immigration and refugee laws. The United States and Canada have a history of working together successfully on issues ranging from trade and travel to national security. (5) They have also experienced failed attempts to negotiate and compromise. (6) Disagreement is inevitable, but differences must be overcome to implement the North American perimeter security concept.

    This article will analyze the various immigration and refugee laws of the United States and Canada identifying areas where they diverge and could thus be problematic when implementing the North American perimeter security concept. For example, the United States and Canada have drastically different rules governing how refugee claimants are treated upon entry into the country. (7) Whereas the United States focuses on security before acceptance, (8) Canada does the opposite, allowing claimants to travel freely pending their court date (9). Divergent views on balancing security versus personal rights is a common theme when comparing the immigration and refugee laws of both countries.

    The American and Canadian laws have significant differences not only regarding refugees, but visitor visas (10) and travel documentation requirements, (11) too. However, the challenges these differences present are not insurmountable. In order to effectively open the border and facilitate the flow of trade, each country must compromise in an effort to soothe the other's concerns. For the United States, this means giving more consideration to humanitarian and individual rights, and for Canada this means respecting the United States' security concerns. Again, there have been past successes, (12) but this article discusses a recent failure (13) that may demonstrate unwillingness, on the part of both countries, to bend far enough for the other. In sum, complete coordination and harmonization of U.S. and Canada immigration and refugee laws is possible, but unlikely.

    This article has two main sections. Part III discusses the immigration and refugee laws of both countries, provides examples of prior United States-Canada collaboration, and analyzes the areas of immigration and refugee laws where harmonization is needed. Part IV discusses potential problems in harmonizing said laws then examines a recent failed attempt at collaboration between the two countries and summarizes the lessons learned from that experience.

  2. FACTUAL BACKGROUND

    In October 2000, United States Ambassador to Canada, Gordon Giffin, noted that border management policies were becoming outdated and could not keep up with the rapid trade growth. (14) He suggested a perimeter approach to border management, which would require the United States and Canada to harmonize many of their policies to create a continental perimeter around the two countries. (15) Then came September 11, 2001. (16) Overnight, the goal shifted from facilitating trade by creating an open border to creating the open border only if the national security concerns of both countries were met first.

    In the days and weeks following September 11, the United States and Canada were still in shock. For many Americans, there could not be too much protection. (17) In the wake of the attacks, both countries intensified security measures and put national security interests ahead of everything else. Because of the increased security, traffic wait times at the United States-Canadian border often exceeded fifteen hours. (18) Within days of the attacks, both Daimler-Chrysler and Ford announced that they would have to temporarily shut down several U.S. assembly lines because parts made in Canada were stuck in traffic at the border. (19)

    Fast forward to 2012. Each minute, nearly one million dollars in goods and services cross the 5,525-mile United States-Canada border. (20) Every day, this means that more than 300,000 people and $1.6 billion of goods and services make the trek from Canada to the United States, and vice versa. (21) The United States and Canada operate what is often described as the "largest open border in the world." (22) More than seventy million people and thirty-five million vehicles cross the border each year. The United States consumes more than 70% of Canadian exports, (23) and Canada is the largest export market for at least thirty-six of the fifty U.S. states. (24) In 2009, the services trade between the United States and Canada reached $64 billion, and in 2010, the two countries traded $525 billion in goods. (25) Clearly, this is an important relationship for both countries, economically and otherwise.

    The North American perimeter security concept will aim to expedite the flow of traffic across the border in an effort to facilitate trade and travel while maintaining national security interests. Unfortunately, the current border system is slow and costly, thus hindering the movement of people and goods. The perimeter security concept would essentially remove barriers at the shared border and instead focus on enforcement and prevention at continental points of entry. (26) If implemented, a person could land at Calgary International Airport, go through the necessary immigration and travel checks, and then travel freely throughout Canada and the United States. If that person is a trucker for Ford Motor Company or a tourist from London, this is advantageous. With the open border, they can easily travel around the United States and Canada without long delays and extensive scrutiny by border control agents. But if that person is an al-Qaeda operative from Swaziland, such freedom of movement is a nightmare for United States and Canadian national security officials.

    While the economic interests of both countries favor an open border, the security interests favor a closed border. (27) To be effective, the North American perimeter security concept must accommodate both. This would require many American and Canadian laws and policies to be harmonized, including those that concern immigration and refugees.

  3. IMMIGRATION AND REFUGEE LAWS OF THE UNITED STATES AND CANADA

    Immigration is central to the composition and identity of both the United States and Canada. Both countries have immigration policies that seek to enhance and expand their populations, geographical frontiers, and labor markets; reunite families; protect the persecuted and displaced; and admit temporary workers to supplement their labor force during shortages. (28) However, these policies differ slightly in their goals and outcomes. In 2010, the United States admitted 66.3% of immigrants under family sponsorships and only 14.2% for employment-based purposes. (29) In the same year, Canada admitted only 18.2% of immigrants under family sponsorships and 69.3% for economic purposes. (30)

    U.S. immigration law steins from a number of sources. Article I, Section 8, Clause 4 of the United States Constitution provides Congress the power to "establish a uniform rule of naturalization." (31) Today's basic body of immigration law is the Immigration and Nationality Act of 1952, which has undergone significant and routine amendments. (32) The 1986 Immigration Reform and Control Act regulates employers and cracks down on the use of illegal labor. (33) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 strengthens border control, creates stiffer penalties for immigration violations, improves enforcement, and allows for better apprehension and removal of illegal aliens. (34) After September 11, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, more commonly known as the USA PATRIOT ACT. This Act provides for more thorough background investigations, of immigrants and non-immigrants, and improves the government's ability to track foreign nationals within the United States. (35) Finally, the Homeland Security Act of 2002 created the Department of Homeland Security, which serves as an umbrella organization to protect the United States by responding to terrorism, accidents, and natural disasters. (36) Though spread across many different acts and regulations, regulating immigration is solely a function of the federal government. In Fiallo v. Bell, the Supreme Court stated, "Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." (37)

    Canada derives its immigration law from multiple sources as well, including the two documents that comprise Canada's Constitution: the British North America Act and the Canadian Charter of Rights and Freedoms. (38) The British North America Act grants Parliament power over "naturalization and aliens," (39) while the Charter establishes fundamental rights and freedoms. (40) Interestingly, the Charter grants "[e]veryone ... the right to life, liberty, and security of the person and the...

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