Originally Posted by
Steve M
This is a bit of a special situation since you were going through pre-clearance in Canada. The treaty between the US and Canada that authorizes this unusual situation (where you clear US Immigration and Customs in Canada before you board the airplane and arrive in the US as a domestic flight) provides that the US agents do not have police powers in Canada. So, unlike at the regular ports of entry, they can't arrest you. They can however call over to a Canadian police officer and have them arrest you, assuming that you're arrestable under Canadian law, and possibly have you extradited to the US.
So, this provides all sorts of unusual situations. For example, what if you're caught during Customs inspection with something that's illegal to import into the US, but legal to possess in Canada? If you were going through inspection at a US airport, they could confiscate the item or arrest you. But they can do neither in this hypothetical situation since the item is legal to possess in Canada. But what they can do is refuse to clear you past the checkpoint with the item.
First of all, this happened at the immigration inspection, not customs clearance. Second, what has the identity of my client to do with any of this? There are no clients that I may not, as a matter of law, represent, nor are there any clients that would justify my exclusion from the U.S. I could represent bin Laden himself and the government can not, Constitutionally, exclude my re-entry (or have me arrested, either by Canadian or U.S. police).
Now consider this from an immigration standpoint. PTravel was threatened to not be allowed to come home unless he coughed up the identity of his client. If both he and the Immigration agent stood their ground, he probably could have been prevented from coming back in this situation.
Not legally. As I said, the solution would have been an ex parte writ of mandamus.
Although he can't be denied entry to the US as a US citizen, in this situation he's at the Toronto airport and is not on US soil at the point the Immigration inspection is taking place. If the agent stuck to his ground and said "you're not passing my checkpoint" there's probably not much PTravel could do to force his way through (I mean in the legal sense).
A mandamus is an order from a federal court directed to a government agency or official, requiring that they do something (or refrain from doing something). "Ex parte" means that it could be obtained on very short notice and without participation of the other side, in this case DHS. Depending on the time of day, we could obtain an ex parte writ in a matter of hours, and you better believe that
any federal judge is going to be hostile to a government agency that conditions re-entry into the U.S. on breach of attorney/client privilege.
I guess he could cancel his flight, proceed to a land port of entry, then stand his ground there. At that point he'd be a US citizen on US soil, and they'd have to eventually let him pass once they completed whatever Customs inspection they wanted to do.
This wasn't a Customs inspection. And, as indicated, I wouldn't have chosen to go to a land crossing. I would have first demanded to see this officer's supervisor. If that didn't work, I'd have taken the court approach, along with a phone call or two to the New York Times, Washington Post, Christian Science Monitor and the few other remaining reputable news reporting entities in the U.S.
But at the Toronto airport, he probably has no way under either US or Canadian law to force his way through based on citizenship. I wonder how often situations like this actually happen.
I've been traveling internationally for more than 35 years. I've never had anything like this happen, except that one time in Toronto. If your question is, "How often do individual Immigration/DHS officers act unconstitutionally?" the answer is probably, "Rarely." They do, however, do so from time to time. Do an FT search on "First Amendment" and "Kip Hawley is an Idiot" if you'd like to see another outrageous example.